February 2013

IT Support

The Great Wall of Copyright Protection – IT Maintenance/Repair

By: Todd Bone, XS International

Organizations seeking to better control their Information Technology support costs often seek to take advantage of competitive bidding on support services. This includes not just traditional break-fix, but also broader functions of equipment supply, lifecycle management, and disposal.

The opportunities for both savings and enhanced service are highly desirable.  Not only does competition automatically drive down prices, but it also generates incentives for superior service and more flexible options.

In the face of competition, most Original Equipment Manufacturers (OEMs) quickly “enhance” their offerings.  The end user gets a better deal with either the Independent, or the OEM.  It is a no-lose proposition. However, without competition, particularly in arrangements of “Preferred Provider” status, the incentive to behave well is removed and lower quality service at higher prices is equally axiomatic.

Given these obvious advantages – why hasn’t the IT marketplace fully embraced competition for support? Answer – massive confusion over Copyright Law.  Just as the Great Wall of China did not actually protect the Chinese from contact from the West – neither will the Great Wall of Copyright Protection hold up to End User Scrutiny.

A quick Primer on Copyright and Patent law is in order:

Patents are granted to protect intellectual property, but apply to protect the manufacturing of tangible things, and occasionally business processes.  Patents do not last forever – there are different lifetimes for patents. Design patents, such as for a catalytic converter or an Intel Chip, last 14 years. Other patents last 20 years  – such as for pharmaceuticals (see http://en.wikipedia.org/wiki/Term_of_patent_in_the_United_States ).  Manufacturers of generic parts or generic drugs pay close attention to the expiration date of Patents for this reason.

In the world of support and repair, the IP within a proprietary Sun/Oracle Server or and IBM Z series or a Cisco router is already patented.  Repair of such a device, even when using parts scavenged off a used machine, is not Patent infringement.   OEMs have not litigated against repair companies for patent infringement because there is nothing to litigate.

Copyrights were intended to protect the author of intangible works such as literature, art, and music.  Current law allows for 70 years protection from date of first copyright – meaning that the Rolling Stones, despite their advanced ages, will continue to “Get Satisfaction” for another 30+ years.  Importantly, copyrights are not scrutinized for legitimacy before being granted – they are merely filed.  Even more importantly, many purported copyrights are not actually formally filed, just mentioned.

The Great Wall of Copyright Protection is not its duration (since 70 years might as well be 700), but that much material being treated as Copyrighted is probably not subject to Copyright protection. Not all filings stand up to challenge.  This is particularly common among programming issues and far less over works of literature or music. Recent cases between Oracle and Google over APIs have ruled that APIs conceptually are not copyrightable, just the actual code.  One is able to write as many APIs as wanted, provided they do not directly copy another work.    In other cases, materials claimed as having been Copyrighted, were not in fact filed as such.  Many of these cases are settled out of court for obvious reasons.

OEMs are making vague claims to Copyright protection in order to throw up a Chinese Wall intended only to block competition over repair.   Some of the most famous include Oracle (Sun), Siemens, Cisco, Avaya, NCR, etc.  Thousands of smaller manufacturers may have similar marketing policies. The common theme is that all are claiming that they alone can repair their products because they have the Copyright to the Internal Operating Code that makes the product work.  The end user is largely unaware that the Internal “Machine” Code has already been delivered to them as part of the hardware and is not separate.  They already own the code. This Machine Code is part of the Patent otherwise it would be licensed separately.

Even if it were possible for a competitive repair & maintenance organization to “steal” the machine code, it would only be useful on the identical machine already purchased from the OEM.  The code in question would have already been provided to the original buyer. The OEM would not lose any revenue and not have any of its unique and valuable designs sold in competition.  No repair companies modify or resell such code – only reinstall it.  (It would be ludicrous for a repair company to start re-designing machine code since they aren’t in the business of manufacturing machines).

The holes in the Great Wall of China are large and easily penetrable. End users have only to start asking the right questions to regain control of their support and repair decisions.   Try asking the following of your vendors before your next procurement or bid:

  1. What parts of your product are Patented and which are Copyrighted?
  2. What is the breakdown of pricing for the Copyrighted Materials that are NOT separately Licensed?
  3. What do I own?

About XS International
XSi (www.xsnet.com) specializes in IT Maintenance services, new and used IT hardware, software sales, as well as data center consolidation and IT asset disposition.