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, > C-FIT_Community@realmeasures.dyndns.org) > > -------- Original Message -------- > Date: Tue, 18 Jun 2002 20:22:23 -0400 > From: Seth Johnson > > > (A thread from the Law & Policy of Computer Communications > list, CYBERIA-L@LISTSERV.AOL.COM. 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. > > > ********************************************************************** > For Listserv Instructions, see > http://www.lawlists.net/cyberia > Off-Topic threads: > http://www.lawlists.net/mailman/listinfo/cyberia-ot > Need more help? Send mail to: > Cyberia-L-Request@listserv.aol.com > ********************************************************************** > > C-FIT Community Discussion List > List Parent: seth.johnson@RealMeasures.dyndns.org > C-FIT Home: http://RealMeasures.dyndns.org/C-FIT > > To Subscribe/Unsubscribe: > ------------------------------------------------------------ > Send "[Un]Subscribe C-FIT_Community" To > Listserv@RealMeasures.dyndns.org > > ________________________________________________ > See http://PLUG.phoenix.az.us/navigator-mail.shtml if your mail doesn't post to the list quickly and you use Netscape to write mail. > > PLUG-discuss mailing list - PLUG-discuss@lists.plug.phoenix.az.us > http://lists.PLUG.phoenix.az.us/mailman/listinfo/plug-discuss