By Maricopa County rules, Microsoft not Qualified for Government Contracts

Tue, 2 Jul 2002 11:14:21 -0700

it started to sound good but then they lost me in legalese, can anyone
translate the last few?

anthony
----- Original Message -----
From: "Seth Johnson" <seth.johnson@realmeasures.dyndns.org>
To: <plug-discuss@lists.plug.phoenix.az.us>; <m@netpro.to>
Sent: Tuesday, July 02, 2002 10:40 AM
Subject: On: By Maricopa County rules, Microsoft not Qualified for
Government Contracts

>
> (Forwarded from Committee for Independent Technology
> Community Discussion list,
> C-FIT_Community@realmeasures.dyndns.org)
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 20:22:23 -0400
> From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
>
>
> (A thread from the Law & Policy of Computer Communications
> list, CYBERIA-L@LISTSERV.AOL.COM.  Discussion touches on
> State and Federal jurisdiction regarding the Commerce and
> Contract Clauses, click- and shrinkwrap licenses, UCITA, and
> migration to GNU/Linux.  -- Seth)
>
> > From:    George Toft via
> > Date:    Sat, 15 Jun 2002 14:27:50 -0400
> >
> > [As I read MC1-902.B.3, Microsoft (a Person), having been
> > convicted of a violation of Federal Antitrust Statues,
> > cannot be a County Contractor.]
>
> (original message snipped. -- Seth)
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 08:55:07 -0700
> From: Bruce Hayden <bhayden@IEEE.ORG>
>
> Apparently my fair county of Maricopa would violate its city
> policy if it signed a pending Enterprise agreement with MS.
>
> No matter how nice this sounds, I would suspect that the
> reality is that the county is not going to switch to Macs. I
> am of two minds here.  MS is a convicted monopolists. But my
> tax dollars are at issue here, and I would suspect that
> there is already a large installed base of MS software in
> county offices.
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 13:34:34 -0400
> From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
>
> Bruce Hayden writes:
>
> : Apparently my fair county of Maricopa would violate
> : its city policy if it signed a pending Enterprise
> : agreement with MS.
> :
> : No matter how nice this sounds, I would suspect that
> : the reality is that the county is not going to
> : switch to Macs.  I am of two minds here.  MS is a
> : convicted monopolists.  But my tax dollars are at
> : issue here, and I would suspect that there is
> : already a large installed base of MS software in
> : county offices.
>
> Surely the solution is not to switch to Apple, but rather to
> Linux.  The old installed base, which has been paid for, can
> be used as long as people want it.  If for some reason it
> should become necessary to run Windows applications on Linux
> boxes I understand that WINE is getting pretty good and
> there is always Lindows.  In the few cases where Windows is
> a necessity, Windows boxes can be purchased from an
> independent vendor like Dell, so the county would not be
> contracting with Microsoft, or copies of the software could
> be purchased directly from CompUSA or some such retailer.
>
> The biggest problem might well be finding a source of new
> computers that do not come pre-loaded with MSWindows.  But
> the county can always avoid the Microsoft Tax by buying
> computers from Walmart and Dell will supply servers that are
> pre-loaded with RedHat Linux.
>
> The county would make the perfect plaintiff in an action to
> establish that when it acquired title to a computer,
> including copies of Microsoft's software from Dell or some
> other third party, it is not bound by Microsoft's purported
> ``clickwrap'' license agreement.  An issue that, by the way,
> is purely a matter of state law.
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 13:11:21 -0400
> From: John Noble <jnoble@DGSYS.COM>
>
> At 1:34 PM -0400 6/18/02, Peter D. Junger wrote:
> >The county would make the perfect plaintiff in an
> >action to establish that when it acquired title to
> >a computer, including copies of Microsoft's
> >software from Dell or some other third party, it
> >is not bound by Microsoft's purported ``clickwrap''
> >license agreement.  An issue that, by the way, is
> >purely a matter of state law.
>
> Almost nothing is purely a matter of state law anymore. This
> case would raise dormant Commerce Clause and Contract Clause
> issues. And generally speaking, the Contract Clause scrutiny
> gets much more intense when it is a state or local
> government that is relying on state law to alter or avoid
> its ostensible legal obligations.
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 09:36:49 -0700
> From: Drew Lehman - DigitaEye Designs
> <dlehman@DIGITAEYE.COM>
>
> >No matter how nice this sounds, I would suspect that
> >the reality is that the county is not going to switch
> >to Macs.  I am of two minds here.  MS is a convicted
> >monopolists.  But my tax dollars are at issue here,
> >and I would suspect that there is already a large
> >installed base of MS software in county offices.
>
>   Well, the easy way around this is to sign it for one more
> year, and in that time, begin migrating systems to non-MS
> platforms.  They can even use Lindows!
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 14:59:52 -0400
> From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
>
> John Noble writes:
>
> : At 1:34 PM -0400 6/18/02, Peter D. Junger wrote:
> : >The county would make the perfect plaintiff in an
> : >action to establish that when it acquired title
> : >to a computer, including copies of Microsoft's
> : >software from Dell or some other third party, it
> : >is not bound by Microsoft's purported
> : >``clickwrap'' license agreement.  An issue that,
> : >by the way, is purely a matter of state law.
> :
> : Almost nothing is purely a matter of state law
> : anymore. This case would raise dormant Commerce
> : Clause and Contract Clause issues. And generally
> : speaking, the Contract Clause scrutiny gets much
> : more intense when it is a state or local
> : government that is relying on state law to alter
> : or avoid its ostensible legal obligations.
>
> Are you claiming that there is any law other than state law
> that governs the formation of contracts?  It there is no
> contract, then there can't be a Contracts Clause problem.
> And how could the dormant Commerce Clause be awakened by a
> claim that in buying a computer from Dell or a CD from
> CompUSA one did not somehow enter into a Contract with one
> with whom one has no privity---like Microsoft?
>
> All the stupid and some not so stupid cases involving the
> validity of shrinkwrap and clickwrap agreements are federal
> cases, yet the issue is purely one of state law.  It seems
> to me still that a state municipal corporation would be a
> very good plaintiff for a declaratory judgment in a state
> court; the only better one would be the State, itself; but
> procedurally it would seem rather odd for a state to seek
> such declaratory relief, nicht wahr?
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 17:08:55 -0400
> From: John Noble <jnoble@DGSYS.COM>
>
> At 2:59 PM -0400 6/18/02, Peter D. Junger wrote:
> >Are you claiming that there is any law other than
> >state law that governs the formation of contracts?
> >It there is no contract, then there can't be a
> >Contracts Clause problem.  And how could the
> >dormant Commerce Clause be awakened by a claim
> >that in buying a computer from Dell or a CD from
> >CompUSA one did not somehow enter into a Contract
> >with one with whom one has no privity---like
> >Microsoft?
> >
> >All the stupid and some not so stupid cases
> >involving the validity of shrinkwrap and clickwrap
> >agreements are federal cases, yet the issue is
> >purely one of state law.  It seems to me still
> >that a state municipal corporation would be a very
> >good plaintiff for a declaratory judgment in a
> >state court; the only better one would be the
> >State, itself; but procedurally it would seem
> >rather odd for a state to seek such declaratory
> >relief, nicht wahr?
>
> Wish I knew what 'nicht wahr' means. We agree on where
> contract law should be decided, but state law that "impairs"
> the enforcement of contracts in interstate commerce has to
> suggest Commerce Clause and Contract Clause arguments. I
> represent local governments in cases involving regulation of
> cable and telecom, and I regularly see arguments that
> franchise provisions -- traditionally a matter of state
> contract law -- violate the dormant Commerce Clause; and
> that local laws which alter or amend the obligations of
> franchisees violate the Contract Clause. A California "law"
> that imperils the nationwide mass-market distribution system
> that has evolved for software -- licenses terms imposed
> unilaterally -- would have significant collateral effects
> outside of the state. I'm not saying that it necessarily
> falls to a dormant Commerce Clause analysis, but it presents
> a tempting fucking target. The Contract Clause argument
> isn't as strong, but it's there. In any event, there is
> little question that Congress could preempt state law in
> this area, and I am afraid that the prospect of different
> rules in different states for shrinkwraps and clickwraps
> would persuade them to do exactly that.
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 14:09:50 -0700
> From: Bruce Hayden <bhayden@IEEE.ORG>
>
> With your Commerce Clause and Contract Clause points below,
> is there any way of using such arguments to invalidate UCITA
> laws passed by those few states?  After all, the
> implementation of UCITA can arguably be seen as ex post
> facto changing the terms of software agreements - in
> particular taking shrink-wrap out of UCC II and making
> various terms that were arguably not enforceable now
> enforceable.
>
> John Noble wrote:
>
> > Wish I knew what 'nicht wahr' means. We agree on
> > where contract law should be decided, but state
> > law that "impairs" the enforcement of contracts in
> > interstate commerce has to suggest Commerce Clause
> > and Contract Clause arguments. I represent local
> > governments in cases involving regulation of cable
> > and telecom, and I regularly see arguments that
> > franchise provisions -- traditionally a matter of
> > state contract law -- violate the dormant Commerce
> > Clause; and that local laws which alter or amend
> > the obligations of franchisees violate the Contract
> > Clause. A California "law" that imperils the
> > nationwide mass-market distribution system that has
> > evolved for software -- licenses terms imposed
> > unilaterally -- would have significant collateral
> > effects outside of the state. I'm not saying that
> > it necessarily falls to a dormant Commerce Clause
> > analysis, but it presents a tempting fucking
> > target. The Contract Clause argument isn't as
> > strong, but it's there. In any event, there is
> > little question that Congress could preempt state
> > law in this area, and I am afraid that the prospect
> > of different rules in different states for
> > shrinkwraps and clickwraps would persuade them to
> > do exactly that.
>
>
> -------- Original Message --------
> Date: Tue, 18 Jun 2002 18:01:06 -0400
> From: John Noble <jnoble@DGSYS.COM>
>
> Uniform codes probably undergird state law jurisdiction
> because they address the "patchwork of regulations" problem
> that is often pointed to in support of applying the dormant
> Commerce Clause doctrine to preempt local regulation. The
> Contract Clause argument might be invoked to protect
> pre-existing contract rights that were allegedly abrogated
> by enactment of UCITA, but wouldn't be a problem with
> respect to contracts/sales after enactment.
>
> At 2:09 PM -0700 6/18/02, Bruce Hayden wrote:
> >With your Commerce Clause and Contract Clause points
> >below, is there any way of using such arguments to
> >invalidate UCITA laws passed by those few states?
> >After all, the implementation of UCITA can arguably
> >be seen as ex post facto changing the terms of
> >software agreements - in particular taking shrink-
> >wrap out of UCC II and making various terms that
> >were arguably not enforceable now enforceable.
>
>
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