Does Anyone Own Syntax?
Friday, December 6, 1996 by Dave Winer.
Let's begin this day with a deep and (I think) important technical and legal question.
Does Anyone Own Syntax?
Here's the question...
If you write a software product that implements a programming language, do you own the syntax of the language?
Here's a case study that illustrates the question.
A fictional developer, Kirk McRay, develops a new web server add-on that allows web pages to contain short scripts that are evaluated when the pages are served. It's a simple product, it takes Kirk about two months to implement it.
It's released in early 1995, and the product, which sells for $495, catches on with web developers. His company grows to ten people.
One year later, the market has grown, and Kirk's initial design is looking old and out of date. It's become clear how to move forward, but amazingly Kirk treats the product as a cash cow, they aren't updating it, or adding new capabilities.
Other developers see an opportunity to add new features, and to undercut Kirk's price, and want to enter this market. Users have a large investment in pages that contain commands in Kirk's language, so they reasonably demand backward compatibility with Kirk's product, to preserve their investment.
So Richard, another fictional enterpreneur, decides to add Kirk's syntax to the smart server product he's developing. He used a "clean room" approach, the same one Compaq used to produce a clone of IBM's BIOS in the mid-eighties, making IBM's PC a standard and leading to the PC clone market.
Richard's Clean Room
Richard hires a consultant, Paul, to study Kirk's product and write a specification and some test pages. When his work is finished, he passes the spec to Richard, and deletes Kirk's product from his hard disk.
Richard is "clean" -- he's never seen the software he's going to emulate. There was no opportunity to reverse-engineer or disassemble it. If there's any copyright infringement, it isn't of the software or the documentation, because he's never seen the docs, or run the software.
Richard modifies his product so it conforms to Paul's specification and correctly processes the test pages. When this works, he releases a public beta of the software and announces its availability on several mailing lists that Kirk's customers read.
Within a few days, Richard receives a letter from Kirk's attorney saying that he has violated Kirk's copyrights on the syntax of the language, and that he must immediately stop distributing the software. Damages are claimed.
Richard withdraws the software, not wanting to have his life run by attorneys, and he can't afford the legal fees.
It happens again
It's six months later and another developer, Laura, sees the same opportunity that Richard saw. Kirk now has twenty employees, but still has not substantially revised his software.
The users are trying out other products now, including Laura's, but they still have to run and update Kirk's software because no one else can interpret his syntax.
So, in response to demands from users, Laura applies the same clean-room technique that Richard used, releases the software, and as before, receives a threatening letter from Kirk's attorney.
By asserting ownership of the syntax, Kirk is making his customers pay a higher price than they ever agreed to.
With competition, his $495 price would drop, but the customers also pay in lost time because of incompatibilities. And they pay in missed opportunity, because new features that would keep their websites competitive were never offered to them.
Imagine a different scenario, where Kirk updated his product quickly in response to customer needs. It's doubtful if Richard or Laura would have seen an opportunity.
When a vendor views a market as a cash cow, he must be subject to competition. It keeps vendors honest and hardworking, it incentivizes them to invest. Kirk is seeking legal protection to cover up for a lack of responsiveness. He wasn't being competitive, and he's looking to the legal system for justification.
I could understand Kirk's objection if Laura and Richard were much larger companies that were offering an inferior product that replaced his. But that's not the case, their products are broader and stronger, more efficient, and lower-priced. Their only desire is to move the market forward, and to be rewarded if they are successful.
The issues that Kirk is dealing with are as old as business itself. To be a successful businessperson, you have to go thru this, rise to the competition. There's nothing wrong with a challenge. If you're a winner, you win. If you're a loser you call an attorney.
Competition is an essential element of our economic system. The same laws that apply to giant companies like Microsoft and IBM apply equally to smaller companies who view their markets as captive and not subject to competition.
So, for pragmatic, economic and moral reasons, my answer to the question is No. It's not possible to own syntax.
This isn't academic
The issue is a hot topic in the cross-platform web developer community. The discussion is about the NetCloak product from Maxum Software, http://www.maxum.com/.
Competitors want to add support for NetCloak syntax to other server software, but they have held back, wanting to avoid a legal battle with Maxum.
The question has been raised in court, in a 1991 suit filed by Ashton-Tate against Fox Software over the language implemented in Ashton-Tate's dBASE product.
See http://www.lgu.com/cr37.htm for a discussion of this case.