[tlug] Windows' Linux Look-alikes--paper on Copyright law and copying the MS GUI in Linux

["Douglas Steele" <douglassteele@example.com>]

I am looking for comments, criticism and advice (especially on technical
issues) for a Copyright analysis I've written on copying the Windows
user interface in Linux.  Rather than dump a 110 pdf file on the entire
list, I'll email it to anyone who wants to take a look (please specificy
PDF or OpenOffice format).  By way of background, I'm a U.S. attorney in
Tokyo and also work with xpde.org, a free software project.

Thanks!

 Doug Steele
 douglas@example.com


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[First and last paragraph included below]

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Windows' Linux Look-alikes: An analysis under copyright law of Linux
projects that emulate the Windows desktop environment.


I. Windows through a mirror.

	One hundred million new personal computers are sold every year
and Microsoft controls more than 90% of the market for their operating
systems.1   Microsoft "possesses a dominant, persistent, and increasing
share of the world- wide market for Intel-compatible PC operating
systems2" and has used its power to extend further monopolies into the
other markets including browsers (Internet Explorer), word processors
(Word), spreadsheets (Excel), and office application suites (Office).
It has aggressively entered the server, console game and embedded device
markets and acquired significant market share in them.  The only
meaningful threat to Microsoft's monopolies is the emergence of "free"
and "open source" software projects, primarily the GNU/Linux operating
system.  




	
V. Conclusion  

	GNU/Linux based graphical interfaces that emulate the appearance
of Microsoft's Windows operating system may, if they copy the exact
appearance of unique or distinctive graphical elements infringe
Microsoft's copyright.  So long as they avoid exact copying of the
relatively few unique or distinctive elements in the Windows interface,
they can still provide an interface for Linux systems that Windows users
are familiar with yet not infringe copyright.  The cases that set out
the relevant tests for determining whether they infringe are Lotus v.
Borland and Apple v. Microsoft.  Because of the differences between the
two systems architectures, non-literal copying, as tested by Computer
Associates v. Altai, is unlikely to be implicated.  Trade mark and trade
dress are areas of potentially serious legal risk for XPde and similar
projects but is beyond the scope of this analysis.