MS As Jolly Roger?

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A Geek IQ Test

You may have seen some geeks jumping up and down in glee after hearing the “news” that Microsoft was found guilty of “software piracy.” It’s another legal IQ test, and they’re failing this one, too.

When you don’t have their facts straight, nor even have the most important facts in the case, there’s one word to describe jumping up and down in glee about it, and it’s not “smart.”

This will no doubt justify in the minds of many individuals their own raising of the black flag. Actually, as we’ll see later, it does the opposite.

The Facts

Let’s get the facts straight and know what we don’t know– yet.

MS was not convicted of software piracy. It was convicted by a local French commercial court of “violation of intellectual property,” or copyright infringement.

The term “software piracy” were words inaccurately used by a Peruvian legislator in referring to the case while arguing with MS about whether or not the Peruvian government should exclusively use open source software or not.

Software piracy is the stealing of programs. At most, what MS may have done is use some copyrighted code without paying for it. Hardly good if true, but not exactly warez, either.

Essentially, this is the story.

French authors come up with proprietary code for animation. They apparently at least begin the process of registering the source code with the French equivalent of the copyright office.

In 1992, they sign a multiyear contract with a company making animation software (Softimage) to include the code in their program.

It’s unclear at what point the code or equivalent was incorporated into the program, but in 1994, Software demands much better terms. The authors refuse. Shortly thereafter, Microsoft buys the company.

The contract between the authors and Softimage (now part of MS) ends early 1995. Softimage/MS says they’ve removed “some or all” of the code, but almost all of the functions the proprietary code provided are still in the program.

The company, and later the original authors start legal action.

Microsoft sells Softimage to another company in 1998 in return for a holding in that company.

A French court finds Microsoft guilty of copyright infringement in September 2001, and fines MS France about $400,000. MS France says it will appeal.

The Devil Is In The Details

The problem with copyright infringement is that the real story is in the gritty little details, many of which are not provided in the story.

For instance, we don’t know whether Softimage kept using the actual code from the authors, or came up with the functional equivalent for it.

If the latter, well, that’s just what was done by Phoenix and a few others at the dawn of the PC era to allow for “IBM-compatibles.” IBM took them to court, and lost. This may be a similiar situation.

There’s a good possibility that French copyright law when it comes to source code is more expansive and protective than American and/or international copyright law.

For instance, Lotus once sued Borland for copyright infringement because Borland pretty much copied the menu structure of Lotus 1-2-3. The U.S. courts found that uncopyrightable.

In short, a French court using French law could well find MS guilty as sin of violating French law, while a U.S. court using U.S. law would not. God (and a few copyright lawyers) only knows what would happen once international copyright treaties like the Berne Convention get considered.

The decision may have turned on a technicality that we don’t know anything about, yet.

Of course, MS may well have been Pure Evil, too, and would have been nailed by any court. We don’t know that yet, and we certainly don’t know that for sure.

Since the news articles don’t provide the pertinent facts, the grounds upon which MS defended itself, and the grounds on which the French court decided against MS, we don’t know enough to say whether MS was Being Pure Evil, or had a reasonable case which they could eventually win. It could be either.

Not saying at all MS has to be innocent, just saying we don’t know enough about this case at the moment to intelligently judge this.

This decision was apparently made by the Commercial Court of Nanterre, France on September 27, 2001. If by any chance the court decision is available on the Web, could somebody tell me where it is so somebody can at least try to get to the bottom of this?

Not The Lingua Franca Anymore

This happened last September. Apparently, one French outfit reported it, PCWorld Malta ran an article/translation on it in November, and it took the inaccurate reference by that Peruvian legislator for other press organizations to notice.

As might be expected, the conspiratorial cockroaches have come crawling out of the woodwork on this one.

I guess the simple facts that most computer journalists don’t read French or wait with baited breath for every court decision that comes from every local court in the world is good enough.

I find it a bit ironic that many of those now reporting about MS’s “software piracy” are essentially just rewriting the original French story/English translation. 🙂

“I Don’t Know and I Don’t Care.”

As you might guess, this is getting big play among the MS haters. Unfortunately, it also demonstrates the “Ready, Shoot, Aim” approach to life.

I should think there is at least one bilingual English-French reading MS-hater out there who can get his or her hands on this court decision and translate it.

There are two possible results from this:

1) This is a complicated matter which may turn on factors, laws, or the interaction of different national laws that absolutely no one reading the press accounts know about yet. If that’s the case, then any hullabaloo is at best premature or at worst dopey.

2) The court case may show, in clear and compelling detail, how Evil MS really was in this particular situation, and that the MS defense would have been ludicrous in any court. Then the MS-haters can really go to town, and have a much better case for doing so.

Instead, though, it seems like the yahoos out there apparently think one fact is all they need for a new anti-MS moronic mantra “MS is a software pirate” and to hell with anything else.

It’s just a potential replacement for the older moronic mantra “MS is a monopoly,” like that alone is a crime, which it isn’t.

It’s not that I’m for Microsoft; I’m against stupidity. I am smart enough to know I don’t know enough about this case to say anything but “We don’t know enough to say anything intelligent about it yet,” and others don’t. And that’s dumb, under any circumstance.

P.S. By the way, I fail to see why two-bit pirates would be happy about this. The only lesson to be learned here is, “If you violate copyright, you get punished.” Where’s the good news there?

Ed

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