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Judge rejects MS copyright case, mentions Rockefeller

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MS on Trial Microsoft's last-ditch copyright defence was blown out of the water by Judge Thomas Penfield Jackson as the antritrust trial reached closing arguments on finding of facts yesterday. Faced with the judge's conclusions that Microsoft was a monopoly and that it had harmed consumers, Microsoft's lawyers had gone for the copyright bolt-hole. Under the circumstances, and as we said when the MS defence documents were filed, this was a desperate throw, and the judge's repeated interruptions of Microsoft lead attorney John Warden yesterday bears this out. "Copyright does not protect the conduct with which your company is charged," said Jackson. Nor will the judge's reference to John D Rockefeller have cheered Microsoft up. Rockefeller's Standard Oil was the seminal US monopoly, and was broken up for it. Jackson observed that Rockefeller "had fee-simple control over his oil." This seems to have been an observation rather than a clear statement of his intent to tar Microsoft with precisely the same brush as Rockefeller, but considering the context it can't be viewed as just an observation. Warden's response was in itself interesting, because he attempted to head-off any comparison by saying that copyright was conferred by an act of Congress, while Rockefeller's rights over oil weren't. Given that the judge has made it clear that the copyright argument is, as far as he's concerned, a total loser, Warden is either stupid (it's possible...) or he's already working on the appeal, hoping this pitch will play better in higher courts. The copyright argument itself is one we've been bashing on about round these parts since long before Microsoft promoted it to the front line of the defence. A year ago Microsoft OEM chief Joachim Kempin doggedly argued that the introduction of the Windows Experience was simply an assertion of the copyrights Microsoft held already, rather than an extension of them. Simply put, Microsoft argues that the whole of Windows can be viewed as a single, copyrightable entity, and that anything it puts into Windows is therefore covered. This includes IE, but it also includes the look and feel presented to the user when they boot the machine first, the various items of real estate on the desktop, the install sequence, the initial boot sequence, and so on. Microsoft OEM agreements in their rawest and most restrictive form impose specific conditions defined by Microsoft on the OEMs, and prohibit the running of any non-Microsoft software during the boot sequence. All of these things are what some people (including, almost certainly, Judge Jackson) would call illegal tying in a monopoly situation. But if Microsoft can just get a court somewhere to agree with it on copyright, then all of these things are permissable under copyright law. Of course, if Microsoft's case were to triumph, the bottom line would be that Microsoft could do anything it liked, provided it called it Windows. Except in Korea. ® Related stories: MS exec in shock Windows is Great White Whale claim What MS OEM agreements really say

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