(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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