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Windows XP's adventures in the afterlife shows copyright's copywrongs

Intellectual property law crushed by zombie horde

Opinion On April 8, 2014, Emmanuel III Delly, the Primate Emeritus of Babylon of the Chaldeans and erstwhile Primate of the Chaldean Catholic Church, departed this life, in the full expectation of an eternal life to come. On the same day, another entity entrenched in the lives of millions also passed away as Microsoft declared Windows XP to be EOL – end of life. This being technology rather than theology, the afterlife kicked in straight away. Nearly 10 years on, XP is still remarkably healthy and this illustrates a truth that commercial software companies try to deny.

It is somewhat fashionable to talk about software ecosystems. Programs are organisms with life cycles, exchanging data like food and energy, and affecting the bigger system in which they run. It's a cute and useful metaphor, but it gets one thing horribly wrong: old software never dies. It becomes a zombie.

Take Windows XP. Since EOL, a variety of its validation and authentication services have been modified, peeled away or replaced to bypass Microsoft's own services. Now, more than 20 years after it was launched, the activation key generation algorithm has been cracked, meaning anyone can install an entirely functional XP instance with no modifications. Nearly a decade of official deadness has left the OS easier to use than the day Microsoft declared the bucket kicked.

This extended life after death isn't just common, it's nearly universal. Nothing ever really dies. A creator can write a package's obituary, but people will go on using it for years. Often a community will grow up around it to provide support, modifications, and even new versions; other times something will fade gently away until it re-emerges as collectible, reanimated retro. Sometimes, as in gaming, you can't tell the two processes apart, yet the official narrative is that software has a manufacturer-defined life cycle. The ecosystem is full of shuffling zombified bodies that officially don't exist. That's no way to deal with zombies.

The problem is copyright. Legally, no piece of software ever written has fallen out of copyright's default duration of roughly a hundred years, depending on justification. The software industry can be said to have started in 1957 with the first release of FORTRAN, meaning we've still got around 30 years on the clock. Reeeediculous.

Copyright terms are designed to give adequate payback to creators. Thereafter, the social value of free use was deemed to be greater than any residual benefits to whatever entity held the rights – that's why copyright has limits at all. This logic makes sense with creations that have a long commercial life – books, pictures, music, movies – but much less so for software.

Software inherited copyright protection in the middle of the last century because it seemed a good fit. A creative work containing intellectual property, it slotted right into the existing legal framework. What was not part of the equation was the incredibly accelerated time frame of technological innovation. Proprietary software becomes not just commercially unimportant in a decade or two; it is economically damaging to its creators. They alone must support it, even as it becomes increasingly unsuited to the evolving environment in which it has to function. Costs go up and sales go down, which is when capitalism calls in the death squads.

Copyright doesn't acknowledge this time scale. This leaves everyone in a pickle. If a company won't keep something alive but retains legal rights designed to stop others from reusing or modifying copies, how can anyone take the risks of infringement?

Of course, society has decided to ignore copyright here, and as there's not much money involved, industry is looking the other way. Some companies officially put obsolete code into the public domain, most don't bother but don't care, and places like the Internet Archive act as storehouses for hundreds of thousands of products with little fear.

That's not good enough. Software copyright should officially expire after 20 years, clarifying the status of obsolete works and letting the support systems grow as they see fit – possibly even into commercial models. Why not? Whether this newly freed software makes it into full open sourcehood would be for us all to decide, yet it would remove that barrier to freedom that "we want to make this FOSS, but there are licensed components we can't give away." If your software has reached the age of liberation, its licensed components must be older.

There's more. Code only makes sense in context. Most non-trivial programs work with other systems, exchanging data or services, and in the widest context of all – the humanity served – all software has a relationship to all other software. A radically shortened copyright term would create a much richer environment to study and learn how we and our software interact. If you think that's unimportant, ask yourself how much time you spend trying to make the damn stuff do what you want. An unsolved problem if ever there was one.

There are problems such as the status of documentation, but nothing that good will and logic can't sort out. In a world that's evolved so fast that the most rapacious and jealous companies now issue their own Linux repos, every fragment of the assumptions of software copyright needs to be reassessed. Eternal life may or may not come to the faithful, but it's surely churlish to deny it when it's happening right on our desktops. ®

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