Information Technology and the Law

In his recent post, jprobst notices that the RIAA seems to be contradicting itself:

So the law allows the recording industry to go after the software creators because suing individuals is impractical and futile. Notwithstanding this, the RIAA has filed thousands of lawsuits against individuals.”

On another blog, Timothy K. Armstrong notices that in the MGM vs. Grokster oral arguments before the Supreme Court, when Justice Scalia asks about the potential hesitance inventors might exhibit if they had to consider all possible uses for their inventions, MGM’s responded interestingly:

“MGM’s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel.”

From my meager research on the meaning of “judicial estoppel,” I gather that it prevents parties in court from arguing a point a certain way, then in later cases contradicting themselves.”

When I read these two comments, I wondered if there was an analogous principle to judicial estoppel that would govern a party’s actions instead of their arguments in court. If judicial estoppel prevents them from arguing based on a certain assumption then later arguing as if the assumption were false, should there be a rule that prohibits them from arguing based on some assumption and then acting as if the assumption is false? I don’t know of such a rule, but it seems that

It seems to me that something isn’t right if the RIAA argues a point in court, then acts entirely differently outside of court. Either suing individuals is impractical and futile, or it’s not; shouldn’t the RIAA have to pick one? If they’re suing individuals, there must be some reason for it, and if there’s some reason for it, then why are they arguing otherwise in court? Is it an example of exaggeration and/or deception, utilized solely for the purpose of winning the case? If so, is it misleading enough to be perjurous? Probably not, but something seems fishy about it.

I do realize that this issue is certainly not clear cut. Maybe they find it futile, but they are doing it anyways to show a good faith effort in protecting copyrights. Maybe they are trying to find ways to better sue individuals so that in the future, it’s not futile. And there are certainly instances where arguments are made or actions are taken based on certain assumptions, and those assumptions later turn out to be false; a party should not be penalized merely for being wrong about something, especially if it was a fact that was generally agreed upon.

But something about the RIAA’s position just seems wrong. It seems like they’re saying whatever they have to in order to get their way, and their argument changes based on who’s listening. Either way, the fact that they did make the argument that the iPod obviously had legitimate uses is an important one, I think; I would expect that they won’t be attacking any “Rip Mix Burn” anymore, or at least not with the same fervor as before. I guess, as usual, only time will tell.

The Grokster oral arguments on Tuesday morning gave us a glimpse into the minds of the Supreme Court Justices. The questions they asked showed that they clearly understood the big picture and the broad implications this case has on the future of innovation. This understanding is undoubtedly good for Grokster and the Justices’ questions made me quite optimistic as to the outcome of the case. Below, I’ll attempt to break down what each Justice is thinking based on the oral arguments. This analysis may give us a hint about the nature of the Court’s decision that will be released sometime in June or July.

As a disclaimer, I had an obscured view from the very last row of the Courtroom. It was sometimes difficult to tell which Justice was speaking from where I was situated and I could not see Justices Ginsburg or Souter at all. I’m using my own notes and my limited memory, which might possibly attribute statements with the wrong Justice, but I have tried to confirm each Justices’ views and questions using external reports of the same arguments.

In order of seniority:

Despite his health problems, Chief Justice Rehnquist presided over the case and asked only a few short clarifying questions. I couldn’t clearly decipher much of what he asked mainly due to his very raspy speech, a result of his throat surgery from thyroid cancer. He also momentarily left the Courtroom during the arguments on a number of occasions with the help of aides. Note that Rehnquist was a dissenter in the 5-4 Sony Betamax decision in 1984, which may put him loosely on the side of the entertainment industry.

Donald B. Verrilli Jr., the attorney representing MGM et al., presented the figure of 2.6 billion infringing files downloaded per month that represents 90% of all downloaded files. Justice Stevens recognized that this still amounts to millions of actual legitimate uses on peer-to-peer file sharing systems every day. I don’t recall him being very active in questioning Richard Taranto, the Grokster and Streamcast attorney, so I would expect the author of the 1984 Sony Betamax majority decision to lean towards protecting innovation and legitimate uses.

Justice O’Conner was the swing vote for the majority in the Sony Betamax ruling. During Tuesday’s arguments, she was very interested in getting a clear answer on what standard the industry was proposing. She asked many questions about the active inducement test, and grilled Acting Solicitor General Paul Clement on his interpretation of Sony. She wanted to know why Clement thought the 9th Circuit got it wrong, and Clement responded that there was only anecdotal evidence of non-infringing uses. Clement then surprisingly continued to suggest applying a majority use test, further clouding any clear standard proposed by the Petitioners. Based on Verrilli and Clement’s apparent confusion of what standard to use (adhering to “substantial non-infringing uses”, using the IEEE active inducement standard, or applying a majority use test), Justice O’Conner probably came away dissatisfied with the answers she got. In questioning Taranto, she wondered whether or not other past bad acts by Grokster will still be available for litigation in the lower courts after this trial. Taranto answered yes; this opens up the possibility that O’Conner might intend to establish a clarified rule generally, but in specific, leave further litigation of Grokster to the lower courts. It’s likely that Justice O’Conner will be instrumental in redefining the meaning of the Betamax precedent in the decision, or will even elect to establish an updated test for secondary liability.

Justice Scalia was one of the most active questioners during the session and in my opinion, he asked the toughest and most pressing questions. He was particularly uneasy about the effects on future innovation, asking Clement how many years a new technology should be given to mature before evaluating whether or not its innovators would be liable. Moreover, he wondered how an innovator would know at the time of invention whether or not he would be sued “out of the box.” He seemed unsatisfied with Verrilli’s claim that the iPod was a legal foregone conclusion with inherent non-infringing uses at the time of invention, while a technology such as Grokster was not. At the same time, he was disturbed by the issue of willful ignorance and commented that Grokster might have disabled the capability of obtaining specific knowledge solely to get around the Napster ruling. He also stated outright that the Court will not decide this case on stare decisis such that arguing “Grokster is just like Betamax” will not go very far for Respondants and that the Court will decide this case on independent grounds.

Justice Kennedy openly deplored the entertainment industry that it was unclear what test they were proposing from their submitted briefs. He was very concerned with the fact that Grokster relied on illegal activity as start-up capital for their business, and said that their business model “just seems wrong to me.” Taranto’s argument about looking only at current business practices and separating out past bad acts didn’t seem to satisfy him. Kennedy’s pointed questions about Grokster’s business model leads me to believe he won’t fall on the side of Grokster, but also will not easily accept the industry’s scattered arguments.

Justice Souter was sympathetic to “the guy in the garage” and like Justice Scalia, he wanted to know how inventors could be confident in advance that they wouldn’t subject to liability under the Petitioner’s standard. Grounded in reality, Justice Souter seemed confused as to why Verrilli thought the iPod was unquestionably legal but other technologies were not– and where this line should be drawn. He adeptly recognized many infringing uses of the iPod, that if music could be acquired for free, people would do just that to fill their iPods. On that other hand, he hypothetically applied in the active inducement standard in questioning prior bad acts, saying that inducing customers on Monday through Thursday would effect the sales of a product sold on Friday. He seemed unsettled about the potential of willful ignorance by Grokster and only received a narrow answer from Taranto (that willful ignorance implies having specific information, which Grokster did not, and ignoring this information.) Justice Souter was also involved in trying to decipher a clearer standard and wondered if Petitioners were trying to impose some sort of “flexible rightness” doctrine.

Apparently, Justice Thomas never asks any questions in court, and this day was no different. Often lounging back in his chair and looking generally unengaged, it’s impossible to tell what he is thinking. I could not find any external information about his general stance on technology, but I would assume he is relatively well-versed in understanding technological issues as the youngest Justice on the Bench.

Justice Ginsburg was irked by Taranto’s suggestion that Sony is a bright line rule that has protected innovation and should not be altered. She claimed that the Sony rule was really not all that clear, as the Court writing the majority decision would have stopped after the rule but instead continued on for 13 more pages. Like O’Conner, she seemed primarily interested in finding the proper balance by clarifying the standard set out by Sony. She also worried about giving technologies a free pass and an economic incentive to maximize infringement, as Verrilli argued.

Justice Breyer dropped some very tough questions on Verrilli, asking him how peer-to-peer technologies were really any different from the iPod, the Gutenberg press and the Xerox copy machine. He claimed that these past technologies were undoubtedly good for society, and that the Betamax standard has served innovation well for the past 21 years. He also understood that technologies, such as the Xerox, had many foreseeable infringing uses at the time of invention and that the industry’s proposed standard might stunt innovators lest they be sued. In addition, Justice Breyer asked Taranto about his interpretation of the Sony precedent and the difference between the system’s capabilities and its actual uses.

In all, Justices Scalia, Souter and Breyer were all squarely concerned about the impact on new inventors and future innovation, while Justices O’Conner, Ginsburg and Kennedy were most interested in the interpretation of Sony and the merits of the other proposed tests. It was difficult to glean the stance of Justices Rehnquist, Stevens and Thomas from the oral arguments alone.

My best guess is that the Court will not issue a decision that drastically hurts future technological innovation in general. It was comforting to hear that more than a few Justices recognized possible problems that future innovators would face if they reverse the 9th Circuit based on the existing Betamax doctrine. I believe that the Court will attempt to clarify the existing Betamax doctrine or will adopt a new test altogether that incorporates some conception of intent or inducement. I also presume that the Court will not issue a decision that gives companies, with Grokster-like business models, a free pass to induce infringement. The Grokster decision might very well turn out to be the landmark decision for the upcoming era of technological innovation and I am relieved that the Justices seem to fully grasp the issues important from an innovator’s point of view.

Sebastian’s post raises interesting questions about the rights a company should have to limit “interoperability” products from third parties:

As with the Sega case, I still don’t see the reasoning why a developer of a new product cannot protect the product from use by other third-party developers. To clarify, why is it that Lexmark cannot enforce that only Lexmark cartridges are used on its printers?

My interpretation of the situation is that Lexmark can, and does enforce that Lexmark cartridges are used on its printers. The important thing to bear in mind, though, is that Lexmark can do this with respect to their customers, but not with respect to their competitors. Assuming that the shrinkwrap agreement is a valid and enforceable contract (Judge Feikens says it probably is on page 30 of the ruling), Lexmark requires customers not to use third-party cartridges. The setup is beneficial to both parties, and like the example posed in class of car parts, Lexmark certainly is within their rights with such a business model, and could take action against customers who breach the contract. But Lexmark does not have an all-encompassing right to stop other companies that provide products or services which, when used by customers (by the customers’ own choice), violate the contract. Lexmark attempted to beat this with a copyright loophole, but, I think the court was correct in not allowing Lexmark to claim DMCA protection

Interestingly, reverse engineering is on the line in a case pro-reverse engineering people would never use as their model. SCC’s reverse engineering in this case doesn’t do many of the fantastic things that Unsuspecting Innocent mentions. SCC, in its verbatim copying, didn’t gain much useful knowledge for society and future products. They didn’t open up new dimensions of printer use that previously had not been imagined or exploited. In fact, if third-party cartridges caught on, it’s pretty easy to make a case that Lexmark might eliminate this business model, hurting consumers, who no longer have the option of getting money now in the form of a printer discount, in exchange for purchasing cartridges later. (This particular case is notably different than the Playstation case. Arguing that an emulator will lead to Sony no longer making future Playstations, a product, is more farfetched than arguing Lexmark might discontinue the prebate system, a business model.)

But even though SCC might not be the great innovators of our time, the court noted that the SMARTEK chip had other functional computer programs beyond circumventing Lexmark’s sequence. The court appears to have a broad definition for “independently created computer programs” as written in the DMCA, and I think this is correct. Simply because the chips contain an exact copy of the Toner Loading Program does not mean they are not independently created programs. Normatively, I think this is correct – we want products that add value, and even though SCC’s added value may be small or not obvious, a low bar protects reverse engineering and allows consumers to obtain better products even if there is some verbatim copying. Why should we have to wait until engineers understand every single minute detail to get product improvements? I think the court’s decision is the correct one to protect reverse engineering, and I am pleased that the court looked at broader implications, rather than the value of SCC’s reverse engineering, which may not be that great.

There was much discussion today in class about what right companies have to pair their products exclusively with accessories or neccessary components of the same brand. Though this wasn’t the focus of the Lexmark case, and there was some question as to it’s relevance to the topic, we devled into it pretty deeply anyway. It seemed to be the consensus in the end that Lexmark was in the wrong for their attempted pairing since they had tried to convolute copyright law and the DMCA to protect a monopoly. Aside form the Lexmark case though it was noted that trying to maintain a monopoly is an acceptable business practice, that is untill a monopoly is actually achieved, at which point it is no longer fair to continue to pair products so that they force consumers hands.

It’s acceptable for small companies with limited market share to use monopolistic business models since there are other options available to consumers. Marketplace options are vital to maintaining a competivitve environment which fosters innovation and keeps prices in check. So long as small companies compete and market share remains divided then monopolistic practices are nothing to be concerned with. However once consumer options are limited by one company holding a vast majority of market share than it’s time to bring monopolistic practices to an end. The Microsoft anti-trust suit serves as a perfect example of when it was time to stop. Microsoft commanded such an overwhelming market share that if they were to set up there software so that it was only interoprable with other Microsoft software, consumers would be left with no other viable options. This got me to thinking about textbooks, and the professors who write them.

When professors make their own text books required reading, they are setting up a monopoly even more dominating than Microsoft’s. While it certainly doesn’t have the same scope in terms of number of people affected, it does command control of the entire market share, something even Microsoft can’t claim. There’s no Linux-esque option in this text book example as required reading is just as the name implies. The only options that exist to students are to either not buy the text, which is surely going to hurt their performance in class, or possibly find it on reserve. Both are highly unfeasible if someone is serious about doing well, which leaves them stuck buying the book. This isn’t to say that professors using their own books is always a bad deal. It is often the case that a professor is unhappy with all the other options available so he writes his own. In this case it is certainly better to have a well written book than to avoid a monopoly. Where it becomes a bit devious is when professors are very keen on publishing new editions yearly, just in time to make the used copies obsolete. I think if a professor feels that a book needs to be updated yearly, limiting the supply of cheaper, used editions, than they should think to supply their texts for free to their students. Since students are already paying to attend the class, and there shouldn’t be any sort of copyright issues since the professors owns the copy right, this would seem like a very feasible option. While this is something that will not likely see the inside of a court room, I thought it was worth mentioning.

In class today one student drew an analogy between Lexmark and GM. The argument was that when an owner of a GM automobile replaces one or more parts with non-GM certified parts, that they may run the risk of voiding warranty coverage. In other words, GM doesn’t have to file suit with individuals because they are unhappy with the fact that GM owners may be using aftermarket third-party parts. They simply may (depending on the nature of part(s) in question) have the right to deny partial warranty coverage as a result. This business model completely contrasts with Lexmark’s business model for its T520/522 and T620/622 laser printers. Lexmark uses an authentication sequence with these models to ensure that only Lexmark-certified cartridges are used in these printers. I assume that the GM-Lexmark analogy was originally brought up because the student implied that Lexmark should not care whether an owner decides to use 3rd-party cartridges. However, Lexmark is not committing any moral wrongdoing by requiring that only Lexmark cartridges be used in these printers. Moreover, it is foolish to assume that a business model that works for the automotive industry will work equally well for the printer industry.

First of all, warranty is a considerably bigger issue in cars than in printers. I don’t have any statistics, but even subjectively I am confident that the percentage of warranty claims is much higher with cars than with printers. Thus, while the threat of losing warranty coverage (and the thought of resulting expensive repairs) may be a deterrent to install aftermarket 3rd-party parts on an automobile, it is most certainly not a deterrent for the owner of a printer. Furthermore, I doubt that parts make up a substantial portion of automakers’ revenue. With today’s competitive warranties, consumers are usually protected from paying for routine repairs for about 4 years. And after the warranty period expires, the consumer doesn’t have much incentive to use certified parts, if a cheaper 3rd-party alternative exists, simply because the new part is unlikely to be covered by an additional warranty (though this may not always be the case). On the other hand, ink is something that needs to be continually replaced. And the way that printer manufacturers have their business models set-up, they make a substantial amount of revenue from the sale of ink cartridges. Does this mean that they should change their business models to be closer to that of automakers? Certainly it costs printer companies far less to make cartridges than the outlandish prices they charge in stores might suggest, but part of that is to make printing technology affordable to the casual or home user. I think that most of these people are happy to be able to get the printers cheaply, and would be glad to spend more on ink, since they may not go through it very fast.

Because Lexmark stands to make a substantial portion of their revenue from the sale of cartridges, it is understandable why they might want to exclude popular printers from being compatible with 3rd-party cartridges. In fact, I am sure that this is every printer manufacturer’s dream-come-true. Fortunately, we live in a world where this is not entirely yet the case. Personally, I like being able to buy 3rd-party ink cartridges, or toner cartridges, cheaply. But there is certainly nothing wrong with manufacturers doing everything within their legal right to try and make sure that consumers are forced to buy cartridges from the same manufacturer. At the same time, I don’t necessarily think that what SCC has done is wrong. The point is that right now consumers have a choice as to whether they want to be able to install inexpensive 3rd-party cartridges, or whether they want a printer that they know will only accept expensive cartridges from the manufacturer. As long as consumers have that choice, then they shouldn’t complain that the business model is unfair, so long as the printer manufacturers are within legal bounds.

In conclusion, I don’t think that the Lexmark-GM analogy is useful or applicable to this case. From Lexmark’s perspective, it is obvious why they want a monopoly on cartridge sales to Lexmark owners. But as the 6th Circuit showed in this case, printer companies may never have a complete monopoly on cartridge sales. Lucky us!

In this post I pose the following question: what specifically is the DMCA intended to protect consumers, producers and other innovators from? Because throughout our discussions in class I’ve become more and more confused with its central premise. In the normative sense, the goal of this legislation is to protect software developers and copyright owners of software from illegal pirating and its subsequent global distribution. The legislation presents what is deemed acceptable use of software and what is deemed to be in violation of owners’ or producers’ rights. Furthermore, I feel that the DMCA was essentially enacted to help bridge the fine line that software generally tip-toes between copyright and patent legislation, the gray area that has caused so many tight readings of the law in such cases as Sega v. Accolade, Davidson v. Internet Gateway, and myriad others.

Where my confusion mainly lies is in the fact that the DMCA only pertains to technological innovations that have copyright protections attached. This means that any works that are copyright protected fall under the umbrella of the DMCA extension to copyright law, and those that don’t cannot claim its protection. This statement is valid as can be seen by all, but what I question is what specifically holds up as copyrightable material. Today’s discussion provides the prime example, in particular the Toner Loading Program (TLP) that Lexmark employs. The decision we discussed was somewhat confusing as compared to others we’ve read, as not all of the 3 judge panel were in accord with one another, and even if they were it was for different readings of the same statutes. Yet what bugs me the most is the idea of “reverse engineering,” a topic that I’ve discussed in great detail with my colleague, Jon Epstein. In the Lexmark case, Lexmark sought and received copyright certification for its TLP in their printer systems, which essentially protects the program from illegal use. Meanwhile, reverse engineering of a copyrighted product is deemed legal by the fair use doctrine when it is used to discover the functionality of the product. Further, companies such as SCC are able to use this copyrighted material in their “third-party” innovations without actually infringing copyright law, so long as it is the only method of using the subsequent product. Yet this is the specific reason why copyright protection is sought in the first place, so that innovations can be protected and access to the innovation can be controlled. In this case, I’m not talking about the printer itself. As Judge Feikens points out, once the sale of the printer itself is made, the owner of the printer is able to do with it what they’d like. Instead, my argument pertains specifically to the TLP. This program was devised by Lexmark’s engineers to be used in conjunction with Lexmark printers by Lexmark products. Yet SCC engineers can freely copy word for word the elements of the TLP and use it in their products without copyright liability. This leads me to question what use there is for copyright protection then in the first place. Basically it seems as if there isn’t any. And therefore, since copyright protection doesn’t even apply then what exactly is the DMCA protecting against?

Don’t get my wrong, I completely understand and agree with the idea of “merger,” and particularly how it pertains to this case. It’s clear that Lexmark made a mistake of using the whole TLP as the checksum function input and therefore coupled its copyrighted “expression” with the overall functionality of the printers, thereby circumventing their own copyright protection by merging expression and functionality. Judge Feikens was correct for pointing this out in his Opinion, and that subsequently Lexmark had no basis for protection under the DMCA. But still this begs the question of what copyright is actually useful for, and by extension what the DMCA is useful for protecting against. From this case, it seems to me that any use of the copyrighted technology, as long as it was obtained through reverse engineering and applied as essential to “interoperability” between third-party products and the ones reverse engineered, should be free from copyright infringement liability. Sub-section (f)(1) of the DMCA states that,

a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access…for the sole purpose of identifying those elements that are necessary to achieve interoperability of an independently created computer program.

In this case, we agree that the consumer that purchases the printer essentially “obtains the right” to reverse engineer the product, but this should not give the right to turn around and use the gained knowledge verbatim in any subsequent third-party innovations. Understanding how the technology works is one thing, but copying the expression completely seems counterintuitive as creativity and innovation are constantly being promoted while copying is not.

As with the Sega case, I still don’t see the reasoning why a developer of a new product cannot protect the product from use by other third-party developers. To clarify, why is it that Lexmark cannot enforce that only Lexmark cartridges are used on its printers? Why is it that any technology they implement to help limit the interoperability of other products is deemed unfair, thus allowing reverse engineering of the product to discover how it works and to promote development of competing products? Quality control is paramount for any corporation, yet when third-party innovations are allowed to be used, in particular ones that have not been approved by the original creator, essentially forfeits any control the original creator may once have had. This seems an unfair practice.

I am fairly confident that if people are actually reading the website, then this post will garner some comment. I have expressed my opinion on the matter, and particularly my reading of both copyright and DMCA law. I apologize if I have mistakenly interpreted either piece of legislation and welcome any feedback that may arise.

        In this week’s post I wanted to take a closer look at reverse-engineering as fair use. As the courts have stated in many of the cases we have read, reverse-engineering is an essential ingredient to the creation of new and innovative ideas. Technology evolves over time. Each new creation stands on the shoulders of its predecessors. Computer programs by definition are written in code. It takes a fair amount of training to understand a program even if one is looking at the code in a high level language. The code that consumers gain access to when they purchase the rights to use software from manufacturers is almost always in the lowest level possible. As written in the decision for Sega v. Accolade, “computer programs are distributed for public use in object code form [which] often precludes public access to the ideas and functional concepts contained in those programs, and thus confers on the copyright owner a de facto monopoly over those ideas and functional concepts. That result defeats the fundamental purpose of the Copyright Act - to encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on.” The true purpose of copyright law is to encourage innovation. Ensuring that people are compensated for their efforts is a necessary secondary outcome.
          Another important corollary to this idea is interoperability. Many of the cases we read focused on allowing reverse engineering to achieve interoperability. In the Accolade decision the court ruled that Accolade was allowed to copy a small portion of code to achieve interoperability. Likewise, in the Lexmark decision the court ruled that Static Control was allowed to copy a portion of the code on Lexmark printer cartridges so other cartridges can work with Lexmark printers. In general the burden is placed on the copyrightable idea. One justification that Justice Sutton used in his opinion was the “copyright protection does not exist because granting protection to the expressive component of the work necessarily would extend protection to the work’s uncopyrightable ideas as well.” This opinion means that if companies try to intertwine their original ideas with code that is meant to prevent other people from writing compatible programs then they lose the copyright on their original idea.
          Companies are not without options however to protect their code. Trade secrets are one major tool they use to try to protect some of their uncopyrightable ideas from being copied. The Accolade case is a great example of this. Sega tried to place code in their program that was required to make games compatible with the Genesis. When Accolade could not fully understand this small segment they chose to copy it so they could produce compatible games. The courts upheld this as fair use because as far as Accolade was concerned there was no other way to produce these games. Sega complained that this code printed out a message that claimed that Accolade’s games were licensed by Sega but the court rejected this argument stating that there was no other option for Accolade.
          With this background in mind, the question I’d like to raise is should all computer programs be open source. The easy answer is no. Companies are entitled to their trade secrets. It would be very difficult to craft a law that would require companies to release their source code without violating all sorts of rights. On the other hand more open source would increase innovation and the quality of all products. When code is subjected to public scrutiny all sorts of bugs and inefficiencies are found. In the end the code almost always turns out better. Normatively, and based on where the emphasis is in copyright law it would seem that the more code we can make open source the better. If code were open source then much of the case in the Sega v. Accolade case would be moot. If there truly was an alternate way to produce games without printing the Sega logo then Accolade presumably would have used it. This is perhaps where some sort of law could be passed that might be a step in the right direction.
         Instead of explicitly stating that a company must release their source code there could be incentives created to encourage them to do so. Often times it would not even be necessary for them to release their entire source code. I think this is part of what the Sega v. Accolade case was getting at. Sega could have released enough code to at least allow companies to create games that did not print out Sega’s license screen. Given the choice, they have little incentive to do this right now. Even if Sega new ahead of time that they would not be protected if Accolade used their code they still probably would have taken their chances with maintaining their trade secret and making the process for Accolade harder.
          However, their are other incentives that the law could provide to make one’s source code open. For example, the law could provide more protection to open-source code. If a company chose to hide their source code then they would not be as protected if another company copied it as in the Accolade case. However, if the code were open source then companies who use the code should have a greater burden placed on them to prove that they are truly creating a new and innovative work. Exactly how far the burden should shift would be an interesting question to debate. One would not want to create a deterrence for innovation by scaring off innovators because of fear of legal liability. Also, it often is not necessary for companies to release all of their source code for their to still be at least some benefit. In fact, some times reverse engineering allows people to find problems or shortcomings in code that would not otherwise be evident. However, this point aside open source means that many more minds are working on the same problem and this is usually a good thing.