Andover.Net lawyers acting for Slashdot have raised a theatrical two fingers to Microsoft, setting the stage for yet another test case under the recently passed Digital Media Copyright Act.
Slashdot was responding to Microsoft's "Designated Agent", who last week requested that the site remove postings containing details of Microsoft's extensions to the Kerberos protocol.
"As a general matter, it is the policy of Slashdot not to interfere with or censor the communications of its users," writes Mark D Robins on behalf of Andover.Net, particularly "given their apparent relevance to issues in the current antitrust litigation between the Microsoft and the government".
And in grandstanding language, Robins goes on to raise eight questions pointing out the ironies of Microsoft's employment of copyright and trade secret law to defend its embroidery of the Kerberos protocol.
Well, Microsoft may or may not be guilty of fair play, but that's always a tricky concept to argue legally; doubly so when it's copyright law - which is designed to defend the holder of information - and probably exponentially so with a copyright law that's both as scattergun and extensive as the DMCA.
Copyright law - let's oversimplify here for a second - is fundamentally an extension of property law, so a legal defence of "property is theft" is going to have to be pretty thorough.
The reply gives us some clues to how it should proceed. And how it shouldn't...
"How can Microsoft claim proprietary protections for enhancement to an open standard protocol?" asks Robins. "How can Microsoft use the Kerberos name, which signifies an open standard protocol, in connection with a proprietary protocol?" Pretty easily actually in both cases, as defences hinging on open standard are as yet undefined, and proprietary is clearly ambiguous.
Andover.net is on much stronger ground with its next points, arguing that Microsoft has undermined its trade secret defence by publishing the details. And the email concludes with a truth or dare reminder of the antitrust action and Microsoft's record on disabling competitors middleware.
So from both Microsoft's opening gambit, which was precisely the formal notification required for prosecutions under the DMCA, and from Slashdot's robust response, both parties are spoiling for a fight.
Microsoft clearly has the opportunity - with a willing combatant - to create legal definitions for 'open source' under the new copyright legislation. Many will wonder just why it might want to given the backlash from the antitrust case... but remember: Microsoft has been the defendant in actions by the States, by the US Government and by Sun Microsystems, and this time it's the plaintiff. And it's got plenty to gain. ®