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Re: Microsoft needs a help strategy

From: amicus_curious
Subject: Re: Microsoft needs a help strategy
Date: Thu, 29 Jan 2009 15:38:00 -0500

"ZnU" <znu@fake.invalid> wrote in message">
In article <4981a3de$0$21807$>,
"amicus_curious" <> wrote:

"ZnU" <znu@fake.invalid> wrote in message">
> In article <4980ee5f$0$21796$>,
> "amicus_curious" <> wrote:

> I agree with you that harm to third parties is irrelevant as a legal
> consideration.
> But Party B clearly is harmed, despite there being no money involved.
> Say Party A and Party B both have an interest in having an Ostrich Farm
> Management application developed, which they both intend to use. So > they
> sign a contract: Party B will write modules to keep track of issues
> related to bird mating and feeding, Party A will write the module to
> connect the application to the International Electronic Ostrich
> Exchange, and and they'll all trade source code so they can
> independently develop and maintain the entire application afterwards.
> Party B finishes his modules first, and fires the source off to Party > A.
> When Party A finishes his modules, though, he refuses to share the
> source with Party B.
> No money has changed hands at all during this process. Yet Party A has
> clearly violated the contract, and Party B has clearly been harmed as a
> result.
Not so clearly, I think.  First, you ignore whether or not Party A is
distributing the improved modules gratis. If so, Party B is receiving any benefit anticipated from the mutual effort. Is that an "irreperable harm"? The JMRI case has hinted that the SCOTUS has somehow established that there
has to be real, not just statutory assumed, harm.  If both parties have
obtained what they expected, then where is that proof of actual harm?

Even if Party A is distributing binaries at zero cost, and so Party B
still has access to the completed application, Party B doesn't have
access to full source code for that application and therefore can't
separately develop and maintain it. Having access to source code is
clearly something of value.

Not so clear. If Party A does further development and releases it gratis, Party B is again whole and has suffered no harm. If Party B has source from PartyA, they may or may not decide to do more work, but that is their own concern. PartyA has provided whatever benefit could accrue. PartyB would have to show that they are prevented from doing some undefined thing, which I don't see any court caring about. PartyB may never do anything, so they are not harmed.

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