Mr. Mitchell..

In your article entitled "Microsoft Risks Copyright Impotence",

http://interactionlaw.com/interactionlaw/id12.html you cited a case. I

would like to share some commentary with you.

Lasercomb America, Inc. v. Reynolds, (911 F.2d 970) (1990)

According to your article, this case stands for the proposition that

copyright owner cannot enforce its copyright while at the same time,

engaging in misuse. I agree that this is the holding of the case.

However, it begs the question of what is defined as "copyright misuse".

Based on the Lasercomb's facts, there was a software vendor (plaintiff)

and a steel die manufacturer (defendant) who copied the software

vendor's software. The plaintiff sued for damages and the defendant

proffered an affirmative defense - that a copyright owner cannot enforce

its copyright when it is engaged in misuse of that copyright. The

offending language of the EULA stated that no licensee could create

their own CAD/CAM die-making software. The court agreed that this was

overly broad. The Lasercomb cites another case: Compton v. Metal

Products, Inc., 453 F.2d 38 (4th Cir.1971) in which the court held that

a license to use a patent required the licensee to not engage in certain

businesses.

Clearly, the facts of this case are distinguishable since MS is not

restricting the rights of people to develop their own software that

could in effect, compete with MS. Specifically, there is nothing in the

VFP EULA that states that a licensee is prohibited from developing

software that would compete with VFP. Further, MS is not saying that you

cannot run VFP on a non-MS OS.

Also, it is important to note that while the 4th Circuit is a step below

the Supreme Court, the case is only binding on the 4th. Circuit. Many of

your readers I am sure are non-lawyers and may not realize that fact.

Further, it bears emphasizing that the 11th. Circuit has failed to adopt

the rule in Lasercomb Bellsouth Advertising & Pub. Corp. v. Donnelley

Information Pub., Inc., 933 F.2d 952. Further, it also bears noting that

MS has already been involved in a case that applied Lasercomb. Microsoft

Corp. v. BEC Computer Co., Inc., 818 F.Supp. 1313. In this central

district of CA case, the court distinguished MS's license terms from

those in Lasercomb.

In my opinion, the properly framed question is this: Does requiring

difference licenses for different operating systems constitute misuse of

copyright?

Further, because your argument contains a threshold issue, specifically

the legal standards for what constitutes mis-use of copyright, you were

compelled to discuss that issue to determine if mis-use occurred in this

case. If the answer is no, the Lasercomb Case becomes inapplicable. On

the substantive issue, MS prevailed in that case. Specifically, MS's

licensing agreements were found to not offend public policy or

anti-trust law.

Mr. Mitchell, software vendors are entitled to earn a return on their

investment. Just because a software vendor decides to draw a line

between where you can distribute royalty free and where you have to pay

a license fee, that does not create a prima facie case of copyright

mis-use.

John V. Petersen

Rutgers University School of Law-Camden Campus - 3L

Visual Foxpro Developer