Re: [h2o-discuss] more edges to IPR

[j proctor <jproctor@oit.umass.edu>]

> So here is my own speculative, imaginative case:
[...]
> When sued for copyright infringement, the guv replies
> that she has not seized the copyright, only the source
> code (citing Zapruder)--the company is still free to
> sell the software and prevent others from selling it.

By releasing the source code, however, she has undermined Microsoft's
ability to sell the product that code represents (as well as related
products, since Win98 and Win2k likely rely on much of the same code as
the hypothetical Win2k+1), thus severly hindering their business.
Charging for technical support isn't making them MS friends already;
that's not likely to change any time soon.


> The state had a valid purpose in seizing the source
> code because of the state of emergency and the state's
> requirement to protect the public interest, she states.

However, the state could have been ordered to require NDAs for anyone that
wants to volunteer to work on it.  In fact, Microsoft's legal team would
probably have the paperwork filed and on track for approval before the
state police finished loading the disks in their evidence van.


> Don't tell me that this case would be settled out of
> court when Microsoft buys the entire state of Washington!

They don't already own it?  Look through Slade Gorton's record in the
Senate and judge for yourself.  Besides, how do you think MS got the
sweet end of that dangerous contract in the first place?


> How would you rule?  What theories of intellectual
> property would you rely on?  Have you passed your bar
> exam yet?

I'll assume, even though I've never actually considered *ever* taking a
bar exam, that you intend responses to be somewhat fair, rather than based
on personal prejudices for or (on this list, more likely) against MS.

Information (in this case, the underlying source code for an OS) that MS
chose to withhold, as was their right at the time they made that decision,
ended up costing millions of dollars and several human lives.  

To get the warrant to sieze the code, the Governor presumably had to
convince a court to overlook the omnipresent disclaimer in the EULA,
recently strengthened by the WA state legislature's overwhelming support
of UCITA (hey, if you can make up the situation, I can make up details;
anyone actually know how the WA delegation voted?), and the fact that the
OS division apparently escaped the DoJ and FTC problems of the late 90's
relatively unscathed.  Assuming she could do so (she *does* get to appoint
the judges, and the WA Attorney General was one of the first on record
opposing it), the next issue is whether she violated the copyright and/or
patent by making a reproduction of it publicly available.

In this case, I think so.  Given an ignored EULA, the state would have a
reasonable case that the contract assumed the software would not be
grossly defective, and could likely get significant damages after a
decades-long legal battle of appeals and counter-appeals.  In that kind of
scenario, she wouldn't be in trouble because she took a copy.  However,
instead of simply demanding that the state be released from the contract
and compensated for its trouble, she make free and public something that
could be regarded as a trade secret.  Obviously, I don't know Washington's
laws, but Florida defines that term and the abuse of it fairly explicitly.

definition of trade secret (FS 812.081): 
http://www.leg.state.fl.us/citizen/documents/statues/1998/ch0815/SEC081__.HTM

computer-related crimes (FS 815):
http://www.leg.state.fl.us/citizen/documents/statues/1998/ch0815/titl0815.htm

I know FS 815 because I got a copy every semester I attended a state
university and every year I worked for the state.  Sure, it wouldn't
surprise me if there's some limitation about these laws not actually
applying to the state government itself under some due process
circumstance, but I don't know that for sure either way, and am not
familiar with the case that says their sovereignty exempts them from
patent laws.  

So, were it my call, and given that Washington's laws are likely similar
to those bits of Florida law I do know, I'd say that the new governor did
violate Microsoft's rights.  In judgement, however, I'd likely break the
contract anyway, and establish some obscenely high financial penalties for
both parties (Microsoft's negligence, and the guv's trade secret
violation) that cancelled each other out.  I would not exclude MS from
being subject to criminal and civil suit by the families or estates of the
injured, but I would likely try to protect the state from similar legal
action, since they acted in good faith.  I'd encourage the state to get
its open source help applied to existing open source products.

And I'd encourage Microsoft to prove conclusively that their business had
actually been damaged by someone's clean-up efforts on their code, and to
collect exactly their cut of the current retail price of Windows 2001
(plus reasonable legal fees, of course) from everyone who distributed a
patched copy for each consumer who will say under oath that he chose it
not because it worked better but solely because of the price, and on the
further condition that Microsoft pay royalties to anyone whose bug-fixes
they used to make later versions.  Microsoft will argue that the
programmers released the code freely, so it's theirs if they want it; I
say IP is a two way street.  By suing because it exists, and then using
the modified code anyway (and you *know* they would), Microsoft would have
forced itself, under its own ideas of IP, to incorporate illegal property
into its own work unless it can make some consultant-type relationship
with the modified sections' copyright holders.

So there.


j