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MS on Trial Microsoft fired its antitrust trial return shot yesterday, claiming of course that it had violated no law, but also setting out its stall on copyright, using a 1976 action involving Monty Python as a precedent. In earlier documents, evidence and executive briefings Microsoft has made its position on copyright pretty clear, but yesterday's Proposed Conclusions of Law flesh this out considerably. Essentially, Microsoft's position is that clear that the entirety of the Windows product it ships, in the form it decides to ship it in, is a work of art, and that the integrity and totality of this work of art is protected by copyright. This is the cunning scheme it came up with when it hatched the Windows Experience concept, and it's the one now embedded in Microsoft OEM agreements, as doggedly defended during the trial by OEM chief and trigger-happy son of a gun Joachim Kempin. The Proposed Conclusions argue that: "The challenged provisions of Microsoft's OEM licence agreements simply restate Microsoft's rights, as the holder of valid copyrights, to preserve the integrity of its copyrighted works." Several cases, including the Python one, Gilliam v ABC, and one ruled on by the current antitrust mediator Judge Richard Posner, are cited in support of this. Gilliam v ABC successfully blocked ABC's broadcast of edited versions of three Python skits, with the court saying: "unauthorised editing of the underlying work, if proven, would constitute an infringement of the copyright in that work." Posner ruled against a similar instance in WGN Continental Broadcasting v United Video, while another precedent cited by Microsoft covers the unauthorised addition of advertising material to a book. It's no accident that most of the precedents cited are video and print publishing cases, rather than software. When it comes to the central monopoly-antitrust issue, of course, Microsoft's position on copyright is neither here nor there - but nevertheless, the sweeping ownership rights it says it has already established constitute a heavy ball and chain for OEMs and customers. According to the Proposed Conclusions: "Microsoft's OEM licence agreements have always prohibited OEMs from modifying or deleting any part of Windows without Microsoft's permission." This means that anything Microsoft says is a part of Windows can't be interfered with by OEMs. This includes IE, but it could also, as Microsoft conceded during the trial, include Office, if Microsoft decided to "integrate" it. It also, as the Proposed Conclusions and the Windows Experience plan make clear, includes the bootup sequence and initial look and feel of the system. Say the Conclusions: "In the spring of 1996, Microsoft added in express provision to its OEM licence agreements requiring that OEMs allow Windows to execute its initial startup sequence the very first time a new machine is turned on and to display the Windows desktop as designed, developed and tested by Microsoft." ® You have been Warned MS exec in shock Windows is great white whale claim What MS OEM agreements really say Kempin Gunplay MS exec's hunting trip: illegally chased and shot 4 antelopes

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