Re: States' suits unconstitutional? Hardly.

[Doug Masson <dmasson@iquest.net>]

In regard to the subject, is microsoft making a constitutional claim?
Sounds like from what I gleaned from the post that they are claiming that
the federal copyright statute preempts any state laws that run contrary to
the copyright law. (Not that that's probably correct, but it's a
"colorable" claim.)

On Tue, 28 Jul 1998, Brett Glass wrote:

> 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.
> 
To be a devil's advocate (and not knowing whether I'm correct), wouldn't
it be a violation of an author's copyrights if a bookstore opened up an
author's book, and stitched their own publication into the binding with
the author's book?

> 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.
> 
Again, with regard to a copyright claim, wouldn't a bookstore be violating
an author's copyright if they sold a book with the last half ripped out?
(Actually, this probably would not be a violation because once you buy a
book you can sell it as you like if you only sell copies you bought. But,
in MS case things are more complicated because they are licensing copies,
not selling them outright).

> 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.
> 
While I don't know where the line is drawn exactly (in fact I'm sure there
are many courts that don't know where the line is drawn), the federal
copyright law does preempt some forms of state action. Otherwise they
could ignore the federal protections under the guise of some other state
interest. For example the states would not be entitled to bring back the
"sweat of the brow" protection on their own initiative. On the other hand,
the federal copyright law doesn't automatically sweep aside every state
law that might conflict with some copyright provision. For example, state
rules of evidence requiring one party to supply copies of certain
documents to opposing parties in a law suit are valid even though, on
their face, they might run contrary to some provision of the copyright
law.

> --Brett Glass
> 
> 

Having said all that, Microsoft is probably stretching their copyright
arguments pretty thin. It's just not as cut and dry as this post seems to
suggest.

---Doug