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(LinuxWorld) -- Texas proves fertile ground for Microsoft's marketing by intimidation campaign. As we reported last August, Microsoft pressured the City of Austin into Microsoft's most expensive licensing scheme -- one which virtually guarantees Windows exclusivity on the desktops of the city's personal computers -- by the threat of a lawsuit for "undocumented" software. A recent Austin American-Statesman story carried the news Microsoft claims the Texas Department of Criminal Justice (TDCJ) owes $1.5 million dollars for missing licenses.

According to TDCJ spokesman Larry Todd, the story began last year when Microsoft presented a proposal to move the state agency to its enterprise-licensing scheme. Todd says the IT staff looked at the contract and its multimillion-dollar price tag and gave Microsoft a flat "no" in response. Todd explained that kind of money was not in the TDCJ budget. That rejection has now led to the $1.5 million dollar claim by Microsoft.

TDCJ has more than 11,000 personal computers. Todd said more than 6,000 of those PCs are more than five years old, making the point that the agency does not spend lavishly on PC hardware or software. While Microsoft claims there are more than 2,000 instances of missing proof of purchase to justify its $1.5 million dollar figure, the TDCJ says there is only half that number. The TDCJ offered Microsoft $280,000 to bring its licensing up to date, and promised more vigilance in tracking licenses in the future. So far, Microsoft has not responded to the counteroffer.

I spoke with Brownlee Bowmer, the City of Austin's CIO, to get his perspective on the TDCJ situation and to learn the latest in the city's dealings with Microsoft. Bowmer said the city signed an enterprise agreement with Microsoft in January. He added that although the license/inventory situation was a factor in the decision, it wasn't the primary motivation. He said he had used the Enterprise license at his previous employer and was comfortable with it. Implicit in that comfort level is the belief that Windows will remain the only viable option for desktop use for the next five years.

With one notch on her belt in Central Texas already, it is no wonder that Microsoft attorney Mary Jo Schrade is bellying up to the bar for more. Schrade authored both the threatening letter to the City of Austin and to the TDCJ. I mentioned to Todd that Microsoft had threatened bad things to the city of Austin if they didn't sign on the dotted line. Todd laughed, saying, "I don't think it's so bad. We're not going to pay it."

Texas is Bush country

Such bravado may not last. This is still George Bush country, and Rick Perry is his handpicked successor as governor. The Bush administration turned the Department of Justice into a handmaiden for Gates, and Perry shows no enthusiasm for protecting his constituents from the likes of Schrade and company. A quote from his office last Friday said Governor Perry "expects all state agencies to abide by copyright laws, as well as other laws."

In the background of the story at the TDCJ, a change in IT leadership at the agency is underway. Linda Burney, the director of Data Services at the agency, retired in February. A new director took office last month. The timing is interesting. Perhaps the new regime will not be so resistant to Microsoft's marketing muscle.

Playing by Microsoft's rules

Microsoft's behavior may be distasteful, but it is legal? Yes, apparently that is true. Hidden beneath that platitude is an unconscionable fact: Microsoft is being paid twice. That is to say that beyond any doubt, the citizens of Texas are being forced to pay twice for some software. Other than bad law, unscrupulous politicians, and a malignant monopoly running riot, there is no justification at all for this to be allowed.

The law and the licenses are certainly on Microsoft's side of the issue. The chances of the TDCJ having pirated all 2,000 applications -- and thus be morally, ethically, and legally bound to pay for them -- are nil. Ditto those odds if the number of missing licenses is only half those claimed by Microsoft.

Demonstrated here is Microsoft can collect revenue for lousy record keeping. It's an unearned tax at the expense of the people. It's time for a revolution. Or at the very least, a change in the laws that allow these unconscionable acts to occur. Imagine if movie and music producers demanded an audit of your music and video collection and then asked you to produce corresponding sales receipts for every CD, VCR tape, and DVD in your house.

Microsoft's license terms presume guilt. If you can't match the quantity of license certificates to the software installed, you are guilty of piracy. No matter if you are as honest and scrupulous as a saint, if the cleaning person throws out your proof of purchase you must pay King George again. Quite the reverse should be the case. Microsoft should have to prove piracy to get a nickel.

Microsoft's anti-pirating devices include unique serial numbers for each copy of each application. The serial numbers hold the key to the puzzle. Was the copy of software purchased legitimately? Microsoft should be able to answer that question. Unless the software is counterfeit, Microsoft most certainly collected revenue. Whether by an OEM, a retailer, or a wholesaler, only Microsoft knows. Either way, Microsoft collects regardless of the channel the software took to the desktop.

Play by the customer's rules

Were I leading the negotiations for the TDCJ, I'd turn the tables on Microsoft and demand the company show that the software used by the TDCJ was purchased elsewhere and pirated by the TDCJ. If Microsoft cannot produce a trail of possession that indicates someone else other than TDCJ bought the software, Microsoft should have no right to collect a second fee.

According to the rules of the game today, the only issue is whether the customer's record keeping skills are exemplary. If not, Microsoft is paid -- make that paid again, most likely. Microsoft must be aware the money it squeezes from the public coffers with its Mafiaesque marketing/extortion plan is not entirely money it is rightfully due.

TDCJ's Todd told me that almost all the missing licenses were for software installed on the 6,000 PCs that were at least five years old. It's one thing to keep licenses intact and tied to the hardware the software was installed on for six months, but it is quite a feat to do it for five, six, or seven years. Imagine the moves of personnel, offices, or locations. Imagine the warehousing of records and filing cabinets and the thousands of exposures to cleaning people and others. The current law and the current licenses are providing Microsoft not so much a protection from piracy as a license to pirate. In cases like these, Microsoft is not the victim, but the predator.

As a result of bad laws, it is difficult to tell who the real pirates are today. Is it those who steal proprietary software and use it without paying? Alternatively, is it those who manufacture proprietary software, force its use by illegally maintaining a monopoly, and force their customers to pay for it twice?