On 7/30/98, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> As I understand it, Microsoft's theory is that the remedy under the
> states' antitrust laws goes to how the works are put together. The
> states' argument is that keeping the browser and OS together are
> illegal tying under the states' antitrust laws. The Microsoft
> argument is that saying Microsoft cannot reproduce and distribute
> their work in this form amounts to a restriction on reproduction
> and distribution, two section 106 rights, and is preempted by
> section 301.
As I have been arguing on another list (CYBERIA-L), it seems to me first, that states impose restrictions on reproduction and distribution all the time -- I cannot, for example, reproduce and distribute libelous or obscene copyrighted materials without incurring penalties under state law. In its answer, Microsoft claims a federal right to reproduce and distribute its copyrighted materials, which they say preempts state restrictions. This is just plain wrong; copyright gives Microsoft the right to *exclude* others from reproducing and distributing its copyrighted materials, but confers no affirmative right for Microsoft itself to do so -- as evidenced by my libel and obscenity examples above.
Second, it seems to me that section 301 preempts state law granting rights equivalent to copyright, which is not what state antitrust law does, and so it does not apply here.
I think Microsoft may have figured this out, because their answer articulates an implied conflict preemption rationale, rather than relying on express preemption. But this seems to me wrong as well; Congress' intent was to promote the progress of science and the useful arts by granting exclusive rights in original works, not by granting anticompetitive monopolies. So I see is no conflict between a fedeal grant of copyright and a state restriction on anticompetitive tying.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:31 GMT