Michael A. Stone wrote:
>
> >A Microsoft
> >attorney asked Apple executive Avadis Tevanian: "Suppose Microsoft simply
> >decides not to offer a product. Do you have a problem with that."
> >Tevanian's answer: "Yes. I have a problem with them doing it when they are
> >using it as a threat to get us to do something we didn't want to do."
>
> okay.. legal theory self-test. those who really *do* know the law, please
> check my math:
>
> i'm pretty sure of the following:
>
> when someone does something they have a right not to do, or refrains from
> doing something they have a right to do, (in terms i know, gives up one
> degree of freedom), it's referred to as 'consideration'.
Almost. Consideration is what you exchange to make the contract a valid
instrument. Usually cash. I.e., I need a PERL script. You want cash.
We draft a contract. You have a good, for which I am providing cash as
consideration.
It's really a technical term to validate the contract . . . it isn't
technically a contract if I'm not giving you something. A contract for
you to write me a PERL script in return for absolutely nothing wouldn't
be enforced if I sued you for non-performance.
This is why you always see the $1 thing . . . $1 is enough to establish
consideration.
> a simplistic way to define a contract is to call it an agreement by two or
> more parties to exchange considerations.
Yes.
> a contract in which consideration is based on undefined terms ("i'll give
> you $N, and i want everything you create from now on"), cannot be legally
> enforced.
Unless you're an employee :) A good example here is a university
setting, and a grad student. Because the university provides all
services and facilities, they can (and routinely do) claim rights to
about every original thought you have until you leave.
>
> if it doesn't involve an exchange of considerations, it's not a contract.
> ("he gave it to me, see? a signed paper that says so!" probably won't
> stand up in court)
Right there.
> it is not legally necessary for the two considerations to be of equal
> monetary value. wildly unequal considerations can probably be appealed in
> court, but the basic structure of the contract is okay. if neither party
> appeals, the contract is valid.
Yep.
> and i /think/ the following are true:
>
> an action (or abstention) which has no meaningful change on the status quo
> is not a consideration.
Technically, yes. In some cases you could place great value on no
change in the status quo, and possibly argue that foregone action is
consideration. Fine line to be walking, though.
> and i'm pretty vague on this one, but i don't think you can get double-duty
> out of a single consideration. you can exchange X for Y-and-Z, but if
> you've already agreed to exchange X for Y, you can't demand Z as well.
More or less.
> so here's my conclusion:
>
> Microsoft already receives consideration for producing software which runs
> on a Mac. users pay for it. if Microsoft stops producing Mac software,
> they lose the consideration they currently receive. therefore, Microsoft
> has no legal right to demand additional consideration for continuing to
> produce Mac software.
Assuming they have a contract with Apple that is not under
renegotiation. I doubt that they contracted an obligation to produce,
though . . . rather, they licensed Apple source for the purpose of
developing on that platform, and with the license they obtain a right to
do it or not.
> if Microsoft had offered to do something additional, like offer more
> products, push up a release date, or step up their Apple-related marketing
> budget, it would have been a fair deal. "i'm going to shoot my little toe
> off unless you give me $20" is *not* a legal contract, though.
Again, if it were a production contract, and not a licensing deal, this
would be the case.
This is probably licensing. MS is basically saying "hey, we can afford
to eat all of the money we gave you to license Apple technology and do
nothing with it if we want. Do what we want or we let your technology
die, or we directly compete."
The question, I think, is the one that centers on whether MS used the
knowledge it gained from the licensing of the Apple code to improve
their own products in such a way that they could threaten Apple in a way
they coulnd't have if they did not have the license in the first place
(like they did with Java). This does have some contractual
implications.
It's still blackmail as well, though. Well, technically, it's extortion
. . . *chuckle*
Brett
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