States' suits unconstitutional? Hardly.

[Brett Glass <brett@lariat.org>]

Microsoft has displayed almost unbelievable gall in claiming that the
states' suits against it infringe upon its rights under Federal copyright law.

In a countersuit filed today, Microsoft charges that the states, by
attempting to restrain its anti-competitive practices, is violating its
right as a copyright holder to prevent its software from being altered.

This argument fails on several points. First of all, when OEMs install
splash screens, icons, etc. so as to customize a system, they're adding
their own files to the system; they're not altering Microsoft's and then
republishing them.

Second, even if OEMs remove Internet Explorer, they're merely removing a
separate product which they did not wish to buy from the bundle. This is
perfectly legal. If I buy a bundle that includes shampoo and creme rinse
and I don't like the smell of the creme rinse, I'm under no obligation to
use both.

Finally, copyright protection does not insulate Microsoft from constraints
on anticompetitive business practices any more than the First Amendment
protects fraud. Just because one has the right to speak freely does not
mean that one cannot commit a crime by abusing that right -- for example,
by inciting a riot. Microsoft's bundling and predatory pricing are illegal
practices that cannot be justified by any right of authorship.

--Brett Glass