NEW YORK - Two computer giants submitted to a dictated
peace this past week in a landmark case that highlighted the turmoil
over copyright laws governing computer programs.
A pair of arbitrators announced an order giving themselves
sweeping powers to regulate relations between International Business
Machines Corp. and Japan's Fujitsu Ltd. - the world's largest and
fourth largest computer makers, respectively.
The arbitrators did something the courts could not do. They not
only terminated a dispute over IBM allegations that Fujitsu
illegally copied its software, but established a detailed mechanism
to prevent future conflicts for a period of five to 10 years.
The decisive action announced Tuesday contrasted conspicuously
with the legal morass that has enveloped the field of computer
Copyrights are supposed to protect and encourage innovation, but
some computer innovators say uncertainty over what can be
copyrighted and the threat of endless litigation are actually doing
Often, software disputes pit companies that have
well-established products against companies that are trying to seize
a piece of the business by making products that are similar but
cheaper or with extra features.
Each party typically claims that it alone is on the side of
progress and innovation.
The danger of prolonged confusion over copyrights is that
cautious computer companies might choose the safe course and stand
pat, a course that would ultimately ruin one of the few industries
in which the United States remains clearly No. 1 in the world.
Copyright cases dragging through the courts include a landmark
computer chip dispute between Intel Corp. and Japan's NEC Corp. and
three cases over the ``look and feel'' of Lotus Development Corp.'s
best-selling 1-2-3 spreadsheet program.
Although the arbitration order contains some bad news for both
IBM and Fujitsu, it has the merit of letting the companies know
exactly where they stand with each other.
Fujitsu will pay IBM a lump sum for a paid-up license to use the
operating systems that control IBM's mainframe computers and will be
given access for a fee to the programming information that will
allow it to make functional equivalents of future IBM operating
The order guarantees that Fujitsu will be able to continue as a
competitor to IBM, the dominant force in the $20 billion-a-year
worldwide business of mainframe computers.
Some lawyers think the IBM-Fujitsu order will encourage other
companies to set up arrangements to avoid copyright entanglements.
In fact, that has already begun to happen. Many companies that
are working on products designed to be compatible with those of an
industry leader - such as clones of the IBM personal computer - have
the work done in a ``clean room.''
The clean room is a work area staffed only by people who are
supposed to have no familiarity with the inner workings of the
product they are mimicking and thus cannot be accused of illegal
The IBM-Fujitsu case is a twist because it creates what is, in
effect, a ``dirty room.'' Fujitsu engineers will be allowed to look
at all of IBM's programming code for its operating systems, but the
arbitrators will control how much of it they can carry out the door.
Copyright lawyers tend to say the system is working as is.
Courts are gradually managing to clarify the areas of software
copyrights that were left vague by the 1976 copyright law, argues
Robert Morgan of Fish & Neave, a New York law firm specializing in
Others are not so sure.
``I have some questions about whether the courts will ever be
conversant enough with the technology to make me comfortable with
the judge or the juries making the decision,'' said Michael Scott,
director of the non-profit Center for Computer Law in Los Angeles. …