Re: States' suits unconstitutional? Hardly.

[Brett Glass <brett@lariat.org>]

At 10:12 PM 7/28/98 -0500, you wrote:

>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?

Probably not, so long as the added publication was identifiable as being
its own thing. Think blow-in cards in magazines and books. Or bookmarks 
with advertising on them. Or commercials during TV and radio shows. Or
banners on Web pages. Or even ads in magazines. I, the author of many
magazine articles, don't have any right to complain if ads appear on the
page with my work.

>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?

The buyer would probably not buy the book, or would return it, if it were
seriously damaged. So, the issue probably wouldn't come up; the buyer would
make a claim that the implied warranty of merchantability had been breached.

Also, software is not like a book. Very rarely (perhaps never) is everything 
on the CD installed. Device drivers you don't need, for example, 
don't get copied to the hard drive, and no one expects the manufacturer to
waste 
space on a machine's hard disk by doing that. So, give 'em the CD-ROM
(which DOES
have all the software), but don't install all of it. Omitting Internet
Explorer
is the same way, even more so because it's a separate product that was
lashed onto 
Windows in an attempt to force users to use it.

>> 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. 

A state's law can't contradict Federal law outright. However, the First 
Amendment certainly doesn't prevent the state from arresting someone for
fraud, 
even though this crime may well have been committed via speech. The same is 
true here.... And this is really the overriding principle. What Microsoft has 
done is abuse its monopoly power and engage in tying and predatory pricing.
The 
fact that it did so while selling copyrighted software is immaterial --
just as 
the fact that a person was speaking when selling you swamp land or worthless
"securities" would be no defense in a fraud case.

This *is* cut and dried. I hope the judge dismisses Microsoft's wild notion
in a sentence or two and gets on with the case.

--Brett