Interesting Microsoft license clause re open source

[Ravicher, Daniel B.]

I have to agree with John.  Generally, licensors can offer any restriction
they wish to a potential licensee who can then decide whether or not they
want to accept it.  But, there are a few limitations.  

Perhaps the biggest would be the antitrust laws.  The Sherman Act doesn't
allow parties to negotiate agreements which have a net-anticompetitive
effect on the relevant market.  For instance, a licensor with sufficient
market power who offers a license only on terms that the licensee also buy a
product from a different market, is probably running afoul of the anti-tying
laws of antitrust.  Another example would probably be horizontal price
fixing.

Also, an agreement to act illegally (I'll give you a software license if you
shoot someone for me) won't be enforced by the courts.

--Dan

Dan Ravicher
Brobeck, Phleger and Harrison, LLP
1633 Broadway, 47th Fl.
NY, NY 10019
p. 212.315.8032
f. 212.586.7878
mailto:dravicher at brobeck.com
http://www.brobeck.com/



-----Original Message-----
From: John Cowan [mailto:jcowan at reutershealth.com]
Sent: Monday, June 25, 2001 10:14 AM
To: Lou Grinzo
Cc: license-discuss at opensource.org
Subject: Re: Interesting Microsoft license clause re open source


Lou Grinzo wrote:

> Could you say they
> can only use the software if they had pancakes for breakfast and are
wearing
> blue socks?


Proprietary licenses can insist that you use their product only while

standing on one foot.  Whether you buy such a product is up to you.

-- 
There is / one art             || John Cowan <jcowan at reutershealth.com>
no more / no less              || http://www.reutershealth.com
to do / all things             || http://www.ccil.org/~cowan
with art- / lessness           \\ -- Piet Hein


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