[seul-edu] [Fwd: Re: Request for critique of a MS rebuttal]

[Douglas Loss <drloss@suscom.net>]

-------- Original Message --------
Subject: Re: Request for critique of a MS rebuttal
Date: Fri, 3 May 2002 17:07:13 -0500
From: Dean Pannell <dinotrac@dinotrac.com>
Reply-To: dinotrac@dinotrac.com
To: Douglas Loss <drloss@suscom.net>
References: <3CD2FF9E.5040107@suscom.net>

On Friday 03 May 2002 16:22, you wrote:
 > Dean,

Hope you don't mind if I take a little whack at the tone.
I like the idea of a tone that Microsoft needlessly alarmed people with a
statement that might be true under specific cases,  but misleads in the
general case.

Fair warning:
I don't practice these days (grrr. Keep meaning to find the time to make
regular visits to the law library and even have the check to renew my
license.)

However, the legal questions here aren't very difficult.  Not 
difficult at
all.  Nevertheless, this is not legal advice and I am more than a 
little bit
behind the times.

Microsoft's interest is limited to the use of its software.  They have 
every
right to forbid the use of their software on another computer.  They 
don't
have any right to forbid you to use the computer without their software.
That isn't even consistent with the American system of jurisprudence.

Microsoft would have two bases of action:
IP law (copyright) and contract law.

If you don't use their software, you can't violate their copyrights. 
They
have no basis of action.   I find this idea so ridiculous that I've 
actually
considered bringing back Judge Motion (from I want my DVD, your honor) to
lampoon it.  What a whacky world if we get in trouble for not using
something!  As to the computer hardware, there are no IP issues there. 
  It's
a good.  Period.  To the extent that ROMs, etc have embedded IP, the 
right of
first purchase should apply.

Contract actions are even shakier.  Microsoft entered into a contract 
with the
original purchasor of the system, not the person to whom it was 
donated.  I
suppose that Microsoft could try to make the argument that the 
purchasor has
no right to get rid of the computer, and therefore the donees don't 
really
have title, but...
that won't get anywhere.  I could more easily imagine a judge ruling that
pre-installed software came embedded on the computer and hence became 
part of
the good, which means that the right of first purchase applies.

The most likely outcome is the correct one:  Microsoft's interest is 
limited
to the use of the operating system.

Imagine now, an audit.  Someone goes looking for unlicensed software.
What unlicensed software will they find on a Linux machine?
Answer: Not very much.
Suppose the get snippy:
Hey that's a firesnort 4000.  Those came with WIndows pre-installed.
You should have Windows on there.

At that point, the line "So sue me" sounds good.   Threats are only 
good when
people are afraid of them.  If Microsoft actually sued on something as 
stupid
as that, I would love to see someone stand by their guns and sue for
malicious prosecution and Rule 7 (or state equivalent) recovery.

Ferderal Rule 7 is (or used to be, remember, I'm an old rust-bucket) 
is the
law requiring that a lawyer certifiy that an action being brought 
comes under
Federal Law or a reasonable extension thereof.  Something like this is so
lame I would take the Rule 7 flier.  Nice thing about Rule 7 is that 
you can
get a judgment against the lawyers as well as their client.


Hope that helps a little bit.

Dean













  An even more fundamental problem:  They can't show any damages. 
Lawsuits are
generally brought to recover damages and a showing of harm is 
required.  The
US does not allow "theoretical" actions.



-- 
Doug Loss          As long as I have you there is just
drloss@suscom.net  one other thing I'll always need--
(570) 326-3987     tremendous self control.
                           Ashleigh Brilliant