GNU/Linux operating system 275, 969, 1109, 1163

Linux operating system 275, 969, 1109, 1163

Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner. When the Chinese “steal” Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the value of the software that was taken. But it gains users who are used to life in the Microsoft world. Over time, as the nation grows more wealthy, more and more people will buy software rather than steal it. And hence over time, because that buying will benefit Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose.

Still, the argument is not terribly persuasive. We don't give the alcoholic a defense when he steals his first beer, merely because that will make it more likely that he will buy the next three. Instead, we ordinarily allow businesses to decide for themselves when it is best to give their product away. If Microsoft fears the competition of GNU/Linux, then Microsoft can give its product away, as it did, for example, with Internet Explorer to fight Netscape. A property right means giving the property owner the right to say who gets access to what - at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong.

In the Supreme Court, the briefs on our side were about as diverse as it gets. They included an extraordinary historical brief by the Free Software Foundation (home of the GNU project that made GNU/ Linux possible). They included a powerful brief about the costs of uncertainty by Intel. There were two law professors' briefs, one by copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments.

I don't mean to enter that debate here. It is important only to make clear that the distinction is not between commercial and noncommercial software. There are many important companies that depend fundamentally upon open source and free software, IBM being the most prominent. IBM is increasingly shifting its focus to the GNU/Linux operating system, the most famous bit of “free software” - and IBM is emphatically a commercial entity. Thus, to support “open source and free software” is not to oppose commercial entities. It is, instead, to support a mode of software development that is different from Microsoft's. ²⁰²

^202.Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with “open source” software or software in the public domain. Microsoft's principal opposition is to “free software” licensed under a “copyleft” license, meaning a license that requires the licensee to adopt the same terms on any derivative work. See Bradford L. Smith, “The Future of Software: Enabling the Marketplace to Decide,” Government Policy Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, American Enterprise Institute for Public Policy Research, 2002), 69, available at link #62. See also Craig Mundie, Microsoft senior vice president, The Commercial Software Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63.

Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds's “Linux” kernel was added to produce the GNU/Linux operating system.