Interesting Microsoft license clause re open source

[Lou Grinzo]

Thanks, guys.  I didn't mean to get off on a tangent with the pancakes and
blue socks thing.

But the more important issues, I think, is what's up with MS and this "in
conjunction with" phrasing.  I can't believe that MS's lawyers don't realize
how vague that statement is, which makes it sound suspiciously like an
attempt to intimidate people--i.e. "steer a wide path around anything that
even hints at open or free software, or we'll darken the sky with lawyers."



Take care,
Lou


-----Original Message-----
From: Ravicher, Daniel B. [mailto:DRavicher at brobeck.com]
Sent: Monday, June 25, 2001 11:41 AM
To: 'John Cowan'
Cc: license-discuss at opensource.org
Subject: RE: Interesting Microsoft license clause re open source

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/