By Maricopa County rules, Microsoft not Qualified for Govern…

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Author: Seth Johnson
Date:  
Subject: By Maricopa County rules, Microsoft not Qualified for Government Contracts
They're mostly debating the possibility of a test case that
would address the shrinkwrap license issue. Another person
raises the issue of UCITA. One side points out that
contract law is the domain of State law and a County is a
perfect plaintiff for such a case; the other is wary about
invoking Federal jurisdiction arguments through such a
case. This is an intriguing idea, but the most important
thing is to STOP MICROSOFT in Maricopa County! Many people
will herald you if you pull that off.

Free software in government is a very incisive issue right
about now. It would be *very* influential in a lot of areas
if this were to happen.

Seth Johnson

tickticker wrote:
>
> it started to sound good but then they lost me in legalese, can anyone
> translate the last few?
>
> anthony
> ----- Original Message -----
> From: "Seth Johnson" <>
> 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,
> > )
> >
> > -------- Original Message --------
> > Date: Tue, 18 Jun 2002 20:22:23 -0400
> > From: Seth Johnson <>
> >
> >
> > (A thread from the Law & Policy of Computer Communications
> > list, . 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 <>
> >
> > 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" <>
> >
> > 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 <>
> >
> > 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
> > <>
> >
> > >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" <>
> >
> > 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 <>
> >
> > 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 <>
> >
> > 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 <>
> >
> > 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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