Who cares whether Microsoft’s FoxPro can run on Linux?  Microsoft seems to care – and to care enough to risk copyright impotence for the sake of keeping Linux incapacitated.  If Microsoft is serious about wanting to protect its right to enforce its copyright in FoxPro, it should stop trying to leverage its copyright into control over the rights of others.

 

On April 17, 2003, The Register published John Leyden’s report that a Microsoft executive had “threatened a software developer to prevent him from demonstrating a Microsoft application running on Linux.”  (See “MS legal threat derails FoxPro on Linux demo”).  The ammunition for the threat was an end-user license agreement (EULA) attached to Microsoft Visual FoxPro that purported to give Microsoft the right to decide upon which operating system FoxPro may be run.

 

But the Microsoft tactic is pure rubbish, and it is disappointing that, perhaps due the enormous cost of defending a copyright infringement lawsuit, or the cost of suing to prove Microsoft’s position is rubbish, the software developers trying out FoxPro on Linux operating systems fear sharing their findings with the public.  As a result, the public is denied the benefits of these new developments, and Microsoft gets to enlarge the scope of its FoxPro copyright to control lawful conduct unrelated to it. 

 

There is still hope, however.  Because Microsoft’s efforts to enforce such a EULA could cause it to lose its ability to enforce its copyright in FoxPro at all, at least until it stops such abuses, perhaps the lawyers at Microsoft will wise up and instruct the enforcers to back off.

 

Why would Microsoft be unable to enforce its FoxPro copyright?  Because the penalty for copyright misuse is copyright impotence, which would mean that if Microsoft is leans too hard on a developer who is trying to show how FoxPro can run on Linux, real infringers – the pirates – can use Microsoft’s copyright misuse as a shield against claims of copyright infringement.

 

There are a number of cases in the United States dealing with copyright misuse, some of which go back to the time when motion picture studios tried to leverage their right to license blockbuster movies like Casablanca into power to force theaters to pay for duds like Getting Gertie’s Garter.  In a more recent leading case, Lasercomb America, Inc. v. Reynolds, the Fourth Circuit Court of Appeals (one level below the U.S. Supreme Court) held in 1990 (911 F.2d 970) that a copyright owner could not enforce its copyrights while it was engaging in copyright misuse which, in that case, meant leveraging the copyright with licensing restrictions that had the purpose and effect of enlarging the scope of its copyright power beyond the limits imposed by Congress.

 

Based on the facts reported and a look at the FoxPro EULA, it appears that Microsoft is attempting to use a EULA to enlarge the scope of its copyright power beyond the limits of the copyright monopoly granted by law. 

 

A EULA for Visual FoxPro 8.0 states, in part: “If you choose to redistribute Sample Code, or Redistributable Code (collectively, the "Redistributables") . . . you agree . . . that the Redistributables only operate in conjunction with Microsoft Windows platforms . . . .”  For some, this scenario may invite inquiry into whether Microsoft is somehow tying use of the Microsoft Operating System to the license to distribute FoxPro Redistributables, bringing back visions – or nightmares – of the Internet Explorer litigation.  But resort to standard antitrust tying analysis complicates a fairly simple and straightforward question:  Does Microsoft’s copyright in FoxPro give it the right to condition the license to distribute Redistributables upon the licensee’s waiver of the right to run them on the platform of choice?  Put that way, the answer is clearly “no,” because if the answer was “yes,” it would mean that copyright owners could gain exclusive rights far beyond the few limited rights conferred in the Copyright Act by simply conditioning the exercise of the conferred rights upon the public’s agreement to hand over additional exclusive control.  It would mean that copyright owners could use copyrights to trump rights reserved to the public by Congress.

 

“Sample Code” and “Redistributables” may not mean much to the general public, so let’s take a simpler example.  Section 106 of the Copyright Act gives me, the author of this article, the exclusive right to authorize (or not) the reproduction of this article into copies, and the exclusive right to authorize (or not) the distribution of those copies.  But my rights under Section 106 are “subject to” (the very first words in my copyright) the limitations imposed by Section 107 (the right of the public to make “fair use” of my article by reproducing it or distributing copies without my consent, under certain conditions) and by Section 109 (which includes the right of the owner to sell, lend give away or rent, even over my objection, copies that are made with my permission – sometimes referred to as the “first sale doctrine”).

 

Now, if you make a copy of my article with my permission, Section 109 says you can lend, rent or sell it without my permission.  But suppose I don’t like that result?  Can I give you permission to reproduce my article into copies, but only on condition that you give up your right (and lift the limitation upon my right) in Section 109?  Some copyright owners (including many of the major copyright holding companies) argue that there is nothing to prevent them from using such licensing restrictions or technological devices to trump statutory limitations, but they are wrong.  If copyright holders can side-step limitations the law imposes upon them by mere use of a EULA, the copyright limitations would be useless.

 

Let's look at a parallel.  We have labor and employment laws in the United States that require payment of a minimum wage, and prohibit discrimination based upon the sex or national origin of the employee.  Suppose employers could routinely require prospective employees to waive the application of these federal laws as part of the employment agreement.  If they could, there would be no point in enacting such limitations upon the actions of employers.  Fortunately, in the United States, any agreement under which an employee waives his or her right to a minimum wage or to be free from race-based or sex-based discrimination is null and void.

 

The same should hold true for copyrights.  The copyright grant is limited in nature.  It extends to only a half-dozen specific rights, and even those are "subject to" other provisions, such as the right to make fair use of works, and the right of owners of legal copies to resell them or give them away.  In the case of FoxPro, nothing in the Copyright Act confers upon Microsoft the exclusive right to specify how the work may be performed privately, so it cannot specify upon which operating system it must be performed.  (Just as authors of books do not have the exclusive right to specify which type of light bulb may be used to illuminate the written page, authors of computer software have no exclusive right to specify upon which computer platform the software may be run.) 

 

The Leyden story indicated that the developer that engendered Microsoft’s ire wanted to demonstrate the software publicly.  Arguably, a public demonstration might have involved the public performance of the software, which would implicate another right under the Copyright Act – the exclusive right to perform a work publicly – but conditioning the license to perform a work publicly upon making sure it won’t run on a competing operating system raises the same types of copyright expansionism issues under traditional copyright misuse theory, plus it would involve relinquishment of a right protected under the First Amendment.  Although private parties may agree to limits upon freedom of speech, the use of a federal copyright to impose such a limitation raises the specter of “state action” of the same type that got racist restaurateurs in trouble when they tried to leverage their state-conferred eviction rights into power to maintain a segregated restaurant.  In any event, given the nature of the performance in question – a public demonstration of an innovation that would enable non-infringing private performances of FoxPro on a Linux platform – it appears most probable that such public performance would fall within the nature of fair use.

 

Of course, Microsoft is in a position to make life miserable for the developers through use of costly litigation tactics, and the developers may not have a real option to spend money enforcing their own rights.  And it’s a real shame, because the greater loss is not the developer’s opportunity to show off new FoxPro tricks, but the loss to the public of the benefit of their innovative solutions.  The greatest victims are the least capable of seeking redress.  That’s why it’s so important that our law enforcement agencies – the Department of Justice and the Federal Trade Commission – remain ready, willing and able to step in.  Among the remedies to seek is an injunction against the misuse of copyrights.  In the meantime, anyone sued for infringing Microsoft’s copyrights in FoxPro should ask their attorneys to consider a defense and counterclaim of copyright misuse, seeking a declaratory judgment that Microsoft may not enforce its copyrights in FoxPro so long as it seeks to misuse EULAs to enlarge the scope of its lawful monopoly over the work.