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Microsoft Has Law on Its Side After Code Leak

Code might be viewable, but intellectual property laws prevent its use by legitimate software companies, says expert.

After incomplete portions of source code from Windows 2000 and Windows NT were leaked over the Internet in early February, do Microsoft and other software companies have something to worry about?

According to Christopher Brody, partner at Clark and Brody, an intellectual property law firm in Washington, D.C., the Microsoft code leak might not be a big deal. Considering the sheer complexity of the source code, Brody said, "Maybe only a handful of people could do something with it. It would be hard to make something useful from partial code."

"Microsoft can't do anything now that [the partial code] is out there, but they can if someone uses it," said Brody. The U.S. Copyright Office allows software companies to block portions of the code they want to keep secret, which provides the benefits of copyright protection while keeping software products undisclosed publicly.

The advantage of having copyright registration is that a company can get an injunction, attorney fees and statutory damages-which can get pretty high-for copyright infringement, according to Brody. There's also something called a common law copyright, which allows a company to sue after the fact if it doesn't have a registered copyright. "If the code wasn't copyrighted and a theft occurred, and Microsoft then got a copyright registration, they could still [be awarded] damages and bring into action a lawsuit," Brody explained. "If the company lost sales or profit because of an infringement, they could be granted that loss."

The majority of software companies religiously protect their intellectual properties with copyrights, patents and trademarks. "We've been busy without any dips in workload-even when the economy slows down," said Brody. "A copyright is a 'check,' or insurance, for source codes." After all, it's a globally competitive market, and companies are looking to protect themselves.

What is still to be determined is whether the release of the code will turn out to expose possible security holes that a future cracker can exploit.

About the Author

Kristen Kazarian has been Associate Editor at MCP Magazine for nearly two years. Before this, she worked at Weider Publications as a copy editor for JUMP Magazine and a licensing permissions administrator. Kristen has been in the publishing field for more than 12 years.

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