[Am-info] RE: restraint of trade ... and viewing

[Erick Andrews]

On Thu, 03 Jul 2003 12:17:41 -0500, Glenn T. Livezey, Ph.D. wrote:

>Date: Wed, 02 Jul 2003 17:31:45 -0400
>>>"Fred A. Miller" wrote:
>>>Tell us again how the DOJ trial was going to force MickySoft to be a 
>>>good boy... those three 'monitor's must spend most of their time 
>>>playing golf...
>>> http://www.nzherald.co.nz/storydisplay.cfm?storyID=3510183
>
>>"John J. Urbaniak" <jjurban@attglobal.net> wrote
>>Re: [Am-info] Illegal restraint of trade contract...
>>I went to that page and didn't see anything about the monitors.John
>
>I went there and there is no there there, just an airlines ad.
>Could you supply the text of the story?
>
>Glenn

I this it?  I had no problem getting it just now.  Sorry, no time to reflow and
reformat it to make it "text pretty" for you.

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Copying troubles a hiccup for Linux festival 

   01.07.2003 - By RICHARD WOOD 

   CD duplication company Software Images has refused a request to copy 500 Linux software CDs for a Linux
   Installfest this Saturday, because of concerns the job would breach a contract with Microsoft and infringe
   intellectual property rights. 

   New Zealand Open Source Society member Eden McKee approached Software Images to have a CD replicated
   containing Linux variant Knoppix and Microsoft Office competitor Open Office. 

   But when he arrived with the materials last week, Software Images declined to do the job. Society president Peter
   Harrison then made a separate request for Software Images to do the work. 

   Correspondence obtained by the Herald shows Harrison was told by Software Images' account manager Dean
   Baker that "your content will be no problem to replicate". 

   But he then backtracked, saying there may be an issue due to a "replication agreement" with Microsoft. 

   On Thursday he said the replication was not a problem, but Software Image's e-fulfillment services (if they were
   required) could not be offered. 

   Yesterday Software Images declined to do the job, citing intellectual property concerns. 

   When questioned by the Herald on Friday, Software Images chief executive Allan Morton said his company's
   wariness of Linux was due to legal action between SCO and Linux over intellectual property issues. 

   "[The media] has made us aware that there is litigation around this software." 

   Morton said it was the customer's obligation to show they had the necessary rights and his company could only
   replicate "properly licensed and owned intellectual property content". 

   Harrison said the SCO lawsuit was not about copyright. 

   "There are no allegations that there are any copyright violations in Linux," he said, adding that the Open Source
   community was committed to making sure intellectual property rights were respected. 

   Software Images general manager David Hill denied there was a non-compete agreement with Microsoft. 

   But the existence of a 15-page contract with a non-compete clause was confirmed by Microsoft competitive
   strategy manager Brett Roberts. 

   He said that there was language in the contract that related to Microsoft competitors such as IBM, Oracle, and
   Sun Microsystems. 

   He said Software Images did some "clever logistical work" that provided a competitive advantage for Microsoft
   in the market. 

   "We view them as a critical strategic partner, not just a supplier." 

   Roberts would not disclose the wording of the non-compete clause, claiming commercial confidentiality. 

   Roberts said the contract with Software Images did not contain anything that prevented Software Images
   working with the Open Source Society or pressing Linux CDs "or anything like that". 

   He said Software Images made their decision before talking to Microsoft "for their own reasons". 

   "It's very much a Coke/Pepsi situation. If you are an ad agency dealing with Pepsi you don't pick up business
   with Coke." 

   When the Herald pointed out that Open Source software was a competitor to Microsoft, Roberts said: "I guess
   so, but the NZ Open Source Society isn't." 

   Asked whether the agreement would prevent locally owned competitors to Microsoft from pressing their disks at
   Software Images, Roberts said that he didn't know the intention behind the agreement. 

   Later, he said Microsoft's lawyers' advice was: "It's conjecture. It depends on who, what, when, the technology,
   and a whole bunch of things and the Herald is not a good place to get into a legal discussion." 

   Roberts said "like all good non-compete clauses it isn't [clear cut]. Each situation will have to be evaluated case
   by case". 

   "The important thing would be for companies to have that discussion with Software Images, not make decisions
   based on a [story] in the Herald. 

   The Herald wanted to discuss the issue further with Software Images, but calls yesterday were not returned. 

   Vaughan Stebbing of CD duplication firm Stebbing Recording Studio said his company had copied Linux disks and
   he wasn't aware of any copyright issues relating to the software. 

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-- 
Erick Andrews