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Larry Rosen on the Microsoft Penalty Ruling 289

Posted by Roblimo
from the I-am-a-lawyer-and-I'm-not-ashamed-to-admit-it dept.
Some excellent questions got asked. And these answers, from Larry Rosen, an attorney who works heavily on open source licensing matters, ought to give you a bit of insight into what the Microsoft "final judgement" means in the context of open source development and the software marketplace in general.

How do consumers benefit?
No, really! by Enry

Both Bill Gates and John Ashcroft talked about how the decision benefits consumers. But there's nothing really in the decision that changes the way MSFT does business. I can't call IBM and get a discount on a system without Windows installed, if I load XP onto a machine, MSFT can take it over and install software without my permission, and the APIs can be buried in MSDN, forcing OSS software developers to not only subscribe to MSDN, but also follow whatever licensing MSDN forces on users.

For the most part, this is MSFT business as usual.

Where, in this decision, do the consumers benefit? If you could put yourself in CKK's shoes, what would you say?

Larry:

I would have expected Bill Gates and John Ashcroft to say how happy they are with the decision. That fact alone doesn't help me interpret its effects.

I'm also pretty confident that there will soon be important Microsoft business practice changes to solve the problems you suggested, at least partly as a result of this decision but more importantly as a result of inevitable market forces.

The court decision discourages Microsoft from using its market power to coerce OEMs and distributors into exclusive marketing arrangements. That may encourage companies to offer computers without an operating system installed, or with Linux installed. Let's make sure that distributors friendly to open source offer these options, and let's help prove, by offering competitive open source software solutions to customers, that there's a healthy market for such systems. We know from this court decision that distributors need no longer fear retaliatory licensing practices from Microsoft. Now all we need to do is compete on quality and value.

Microsoft's XP software installation and upgrade model seems to be a dud in the marketplace too. The more Microsoft does nasty things like that to its customers, the more those customers turn to Linux and open source. So I don't see that as being a problem that the antitrust judge had to deal with.

As for your point about APIs, that to me is the most interesting part of the court's decision. The judge found it necessary to define an area in which Microsoft must disclose its APIs. While not as broad a definition as most of us would have liked, it does require Microsoft to disclose a lot more than it ever has before. We must be vigilant to prevent Microsoft's movement of APIs from one operating system level to another simply to hide them from us.

You ask, "Where, in this decision, do consumers benefit?" That's hard to see at the moment. Antitrust law does not deal with a static game in which one party says "check mate" at the last move. It merely attempts to prevent certain behaviors that distort the game as it is played. In answering this and other Slashdot questions, I want to look for ways that the court helped to prevent game distortions. I don't want to grouse about the fact that we didn't get everything we wanted, but instead to identify new opportunities in this court decision for the open source community to play this game against Microsoft successfully as an equal.

On Palladium
by forged

With Microsoft pretty much doing what they want [bbc.co.uk] these days, do you have fear that their Palladium project could be a real threat to Linux and other free-software projects, if MS try to force it upon their installed base? What will be the best way to fight Palladium?

Larry:

Great question, but fortunately it wasn't in my charter to answer it.

I can tell you that the court's decision in the remedy phase of the Microsoft antitrust trial said absolutely nothing about Palladium. I doubt it was anywhere in the judge's mind at the time. And I don't see a clear connection between the two issues.

Your real question, I guess, is hidden in your leading comment, that Microsoft is "pretty much doing what they want these days." After this antitrust decision, they're going to be watched intensely for evidence of anticompetitive behavior. I don't think they're going to be doing only what they want, at least for a few years.

There are plenty of interesting comments on Palladium. I just did a quick Google search and found this page at EPIC. Why don't you ask one of the people at EPIC whether they see the antitrust decision as making a difference to the "trusted computing" technology?

Copyright != Antitrust
by HaeMaker

I have heard in various other cases that if a copyright holder uses his copyright to commit antitrust, they lose the ability to defend their copyright.

Clearly, Microsoft has been found guilty of using its copyright on Windows 95 to kill Netscape.

Is is possible for a pirate to successfully defend himself by claiming Microsoft has lost its copyright? (I assume this applies to only that software specifically mentioned in the case. Not all software produced by Microsoft)

Larry:

Copyright law and antitrust law both deal with monopolies. In copyright law, the monopoly is sanctioned -- encouraged -- as a reward for creativity. In antitrust law, the monopoly is restrained to prevent unfair advantage in anticompetitive ways. So as the questioner rightly points out, there may be ways in which these two laws will have contradictory effect.

It is important to remember that the antitrust law doesn't directly prevent a company from gaining a monopoly by legal means. It is the *use* of that monopoly power to gain unfair advantage over competitors that is prevented. A company can't, for example, use its monopoly in one business area to gain a monopoly in another business area. It can't use a monopoly in water softening systems to force its customers to buy the company's own salt. It can't use its monopoly to prevent competitors from selling their products through independent distributors. It can't sell products at a loss to force competitors out of business.

A copyright owner has a legal monopoly. Antitrust law doesn't trump it. The only thing the antitrust law can do is address a situation in which that legal monopoly is used in an anticompetitive manner by a monopolist.

Ordinarily a company would have the right to publish, or not to publish, its copyrightable subject matter, or to license it under any terms it wanted including confidentiality provisions or withholding the right to create derivative works. Almost every proprietary software vendor uses licenses with such provisions. But Microsoft used that power to lock competitors out from the lucrative "middleware" business. (What the court meant by "middleware" is a potential later topic.) Other companies could not create certain types of applications because Microsoft kept secret some of its copyrightable code in Windows. Even though Windows and those other applications were potentially different business areas, Microsoft tied them together (e.g., used its copyrightable and trade secret materials) in ways that enhanced its monopoly. That was a violation of the antitrust law.

So the court fashioned several remedies to prevent that unfair business tactic by Microsoft.

The court requires Microsoft "to disclose certain APIs, along with related technical information, which 'Microsoft Middleware' utilizes to interoperate with the Windows platform." It also mandates the "disclosure and licensing of protocols used by clients running on Microsoft's Windows operating system to interoperate with Microsoft servers." Executive Summary, pp. 14-15.
At the same time, the court refused to require the disclosures of Microsoft's intellectual property that describes Windows' internal interfaces:
"Over-broad disclosure, such as that proposed by Plaintiffs, must also be avoided because it will likely enable wholesale copying or cloning of Windows without violating Microsoft's intellectual property rights. The cloning of Microsoft's technology carries the potential to hinder some aspects of competition and discourage innovation. As antitrust law does not exist for the protection of competitors, but for the protection of competition, the Court does not regard this end as a legitimate one."
So that's why the court balanced copyright with antitrust.

The court also ordered Microsoft to license its intellectual property for APIs on "reasonable" and "non-discriminatory" terms. Having just lived through a W3C effort to define those words for patent licenses, I expect this part of the court's decree will provide full-time employment to more than a few lawyers. :-)

Valid Business Model
by Mr. Smoove

In the settlement it talks about MS having to disclose information only to companies with a sound business model that meats critera set out by MS. Where does OSS fall? Can MS say OSS is not up to its standards and therefore not release the code?

Additionally what effect will MS's right to charge have on OSS? Can MS only charge for developers to see the code or are they entitled to charge royalties for the implementation of the code? (Can you legally reverse engineer a software having seen the code?)

Larry:

My editor assured me that I would have to answer ten questions, and this one query alone includes five. I'm almost more than half-way done!

The court never once mentioned open source software in its decision. That is not remarkable because judges -- especially district court judges -- are always reluctant to make an issue broader than the case before it. The court was asked to determine a remedy for Microsoft's monopolistic practices. This decision, with all its flaws, does that in a comprehensive way. This means that the court's provisions regarding the disclosure of APIs, the availability of "reasonable and non-discriminatory" licenses from Microsoft, that company's licensing practices with OEMs, and so on, apply equally to competition from open source software as for proprietary software.

To be perfectly clear about this point: Open source software is the most effective competition to Microsoft and they know it. They will not be able to discriminate against our software in monopolistic ways. The court retains the right to step in for the next five (or up to seven!) years if Microsoft doesn't cooperate. We'll be watching.

No, Microsoft can't discriminate against us if they say we're "not up to their standards." That's hogwash any way you look at it! The court did, however, set a one-million-copy-per-year threshold for certain obligations, so that Microsoft isn't forced to "redesign its product to accommodate a particular piece of software with extremely limited use." I'm not sure how this will play out in practice, but I think it is likely to affect smaller proprietary vendors rather than us. After all, we can give away one million copies of open source software to willing customers much easier than a proprietary vendor can sell them.

As I said, Microsoft can charge "reasonable" and "non-discriminatory" royalties. In law school we always used to joke that the word "reasonable" in a statute was a full-employment opportunity for at least two lawyers. Judge Colleen Kollar-Kotelly will be keeping her eyes on that too for at least the next five years. Here's the vague words she used in her decree:

"The Court will prohibit Microsoft from imposing unreasonable or discriminatory license terms, but will permit Microsoft to require a reasonable royalty for the licenses necessary to exercise the rights guaranteed by the final judgment." (Executive Summary pp. 15-16.)
One representative from Microsoft personally reassured me several times over the past few year that her company does not intend to charge high royalties for licenses to patents. Perhaps that also means that her company won't attempt to stifle competition by charging higher royalties than the open source community can afford.

Finally, I'm confused by your question "Can you legally reverse engineer a software having seen the code?" If you've seen the code, why do you need to reverse engineer it? I'll assume you mean, having seen the API documentation, can you reverse engineer Microsoft's code to see how they implemented the API? No! Reverse engineering may be done only if Microsoft allows it in their licenses. Consult a lawyer before you reverse engineer something.

You may have meant one other thing: Under Microsoft's Shared Source licenses you may look at their code. But beware of the conditions under which they show it to you. That software can contaminate you and put your own open source software at risk if you -- even inadvertently -- copy their code. This has nothing to do with the antitrust topic so I'll say no more about that here.

Can Microsoft Pull a "Fast One"?
by viperjsw

What is being put into place to insure that Microsoft actually hands over real code? I mean really. We've got legal consul that doesn't know jack about code trying to, possibly, enforce somehting that they know nothing to little about. Microsoft could hand over out of date code, partial code, bugged code, and any number of other variables on the "truth" and legal guys would be none the wiser.

Larry:

I resent this. Most of the lawyers I meet in open source circles know a lot more than "jack" about code. Some of us even wrote lots of code in prior careers. We're just frustrated engineers who wanted to make our parents proud by going to law school.

We have to count on talented experts in the software field to be able to prove that Microsoft is doing any of the things you described. Keep your eyes open for any signs of cheating.

I've handled lots of civil litigation in which a defendant's misrepresentations come out, and then the defendant lost. The discovery rules give us lots of ways to prove bad faith.

The court appointed an "enforcement committee" to protect the plaintiffs' interests. Here's what that committee has the power to do:

"The remedy adopted by the Court will provide Plaintiffs, acting only after consultation with their enforcement committee, reasonable access to Microsoft's source code, books, ledgers, accounts, correspondence, memoranda, and other correspondence, access to Microsoft employees for interview, and the right to request and receive written reports from Microsoft on any matter contained in the Court's remedial decree. Plaintiffs will, of course, be bound to limit any use of information obtained through these means for the purpose of ensuring Microsoft's compliance with the remedial decree, or as otherwise required by law. Similarly, should information and documents provided to Plaintiffs be subject to disclosure to a third party, Microsoft will not be deprived of the opportunity to claim protection pursuant to Federal Rule of Civil Procedure 26(c)(7)." (Executive Summary, p. 17.)
That's pretty strong. Imagine what life would have been like if we'd had that power all along....

APIs
by mrkurt

Just how much of their remaining undisclosed APIs does Microsoft have to make public? I found the judge's references to this issue quite confusing; in one place she said that MS would have to reveal all of its "communications" protocols; in another she ruled that MS wouldn't have to reveal anything that pertained to such topics as "encryption" or "digital rights management". Isn't it possible for MS to claim that existing or future new APIs for Windows would fall into the latter category, and thus allow them to keep much of it in the dark? My followup question is: what mechanism did the judge set up for determining whether an API should be public or not?

Larry:

Judge Kollar-Kotelly's ruling in the Microsoft antitrust trial was not good news but neither was it a doomsday ruling. Microsoft had already been found liable for monopolistic practices, and the court was just deciding the remedy phase for those plaintiffs who hadn't settled along with the Justice Department quite a while ago.

It is interesting to me to see how such cases are won and lost. Microsoft controlled the definitions that the court accepted and by doing so it won this battle over its future. The court said clearly that the definitions were of paramount importance:

"Integral to understanding the two remedies proposed in this case is a preliminary understanding of the manner in which the two remedies treat middleware." (Executive Summary, p. 5)
The court found that Microsoft's definition of middleware was more consonant with the treatment of the term during the liability phase of the trial.

Middleware is software that resides in the middle between the operating system and something else. "It relies on the interfaces provided by the underlying operating system while simultaneously exposing its own APIs to developers." If defined broadly, such middleware would include almost any software product. If defined narrowly, it would encompass software that provides the functionality of Internet browsers, email client software, networked audio/video client software, and instant messaging software.

The court decided to accept Microsoft's narrow definition of middleware.

Microsoft now has the obligation to expose operating system APIs that are necessary to implement middleware as that term is defined by the court. To avoid confusion, the court specifically required disclosure of APIs for network and server-based applications. The court specifically excluded from disclosure APIs for interactive television software, handheld devices, and Web services.

It seems that, if you can get a court to accept your definitions of terms, you can watch your opponent's proposed remedies disappear in the wind.

The open source community should make sure that Microsoft publishes all the APIs it is required to by this decision. We want to provide valuable open source software that can compete, on Microsoft's own platform and on Linux computers, against all of Microsoft's middleware products.

So experts in open source software should read the court's definitions of middleware carefully, and understand each of the exceptions to the disclosure requirements precisely. I could spend a lifetime analyzing hypotheticals about "communications" protocols, or about "encryption" or "digital rights management." Or I could wait until an important real issue arises. Guess which alternative Judge Kollar-Kotelly chose?

Microsoft is going to have to tread very carefully in this area. If they refuse to disclose certain APIs that their customers, distributors, OEMs and competitors want to have disclosed, they will have to have an intelligent reason. The judge will be listening, and so will we.

Sua Sponte?
by fava

What about the sua sponte provision.

"Jurisdiction is retained by this Court over this action such that the Court may act sua sponte to issue further orders or directions, including but not limited to orders or directions relating to the construction or carrying out of this Final Judgment, the enforcement of compliance therewith, the modification thereof, and the punishment of any violation thereof. Jurisdiction is retained by this Court over this action and the parties thereto for the purpose of enabling the parties to this action to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify or terminate any of its provisions, to enforce compliance, and to punish violations of its provisions."
It sounds a very open ended authority that grants the judge broad powers over all aspects of the settlement.

Can the judge use this provision to broaden the scope of the agreement or to force Microsoft to use a particular intrepretation of some clause, for example the security exemption or the viability clause?

Or am I just a geek grasping for straws?

Larry:

What's wrong with being a geek grasping for straws?

That's exactly the straw this geek grasped at when I first read the court's decision.

Was the judge's ruling based on the case....
by wowbagger

Many folks are whipping themselves into a frenzy blaming the judge for this decision - but a judge can only (and SHOULD only) judge the case they're brought.

Do you feel the judge was judging within the context of the case she was brought (in other words, that the DOJ fell down on the job of bringing the appeal), or do you feel that the judge's decision was in error based on the case that was brought to her?

Larry:

I am sure that Judge Kollar-Kotelly did not ask for the privilege of handling this case. Yet her decision -- agree or disagree -- demonstrated careful reasoning, an appreciation of computer software beyond that of the typical lawyer or judge, and a good understanding of the limitations of her role.

Here's how she got the case:

"On appeal, the United States Court of Appeals for the District of Columbia Circuit deferred to Judge Jackson's factual findings, altered his findings of liability-affirming in part and reversing in part, and vacated the remedy decree. The appellate court affirmed only limited violations based on 2 of the Sherman Act for illegal monopoly maintenance; all other grounds were reversed. Soon thereafter, the case was randomly reassigned to this Court for the imposition of a remedy." (Executive Summary, p. 3.)
Here's how errors are corrected in such situations. The plaintiffs may appeal this decision. Assuming that the appeals court upholds the district court's decision, the plaintiffs can then appeal to the U.S. Supreme Court. That Court may elect not to hear the appeal. Or it can turn this into an important case to be argued by the best lawyers we can find.

At none of those appeals steps will any court care what Larry Rosen feels.

From a Different Point of View
by Bilbo

Most Slashdot readers are, of course, looking at this decision from a strong technical point of view. It is clear that this decision is going to hurt our favorite technology, and is a bad thing for the Technology sector. We tend to draw parallels from other technology cases, such as the breakup of AT&T, and the outcome of that case.

My question however, is, if you look at this decision from a Business perspective, how does it fall? Is this decision in line with existing case law when it comes to dealing with individuals and corporations who have come to exercise huge amounts of power over their various sectors of the economy? Was this decision made with the intent of strengthening the overall business climate of the US, especially given the current state of the world economy? Will it make perfect sense to the average CEO?

Larry:

You're looking at this decision from the right perspective. Antitrust law deals with business practices, not technology. But this case was brought because of a technology monopoly, so the court fashioned a remedy that it felt addressed the business of technology in which Microsoft's monopolistic practices were most obvious.

The previous court found that Microsoft abused its monopoly power to gain new (related) monopolies and to strengthen its market dominance. When that happens, the court must fashion a remedy. Here's how Judge Kollar-Kotelly, at pages 3-4 of her Executive Summary, described the law of antitrust remedies:

1. Since the appeals court already reduced the scope of Microsoft's liability, that higher court ordered the district court to "determine the propriety of a specific remedy for the *limited* ground of liability we have upheld."

2. Microsoft had not been found to have acquired its monopoly unfairly, but merely to have maintained it by illegal means. Therefore, "rather than termination of the monopoly, the proper objective of the remedy in this case is termination of the exclusionary acts and practices related thereto which served to illegally maintain the monopoly."

3. The goal of antitrust remedies is not to punish a past transgression, nor merely to end specific illegal practices. A remedy should "effectively pry open to competition a market that has been closed by [a] defendant['s] illegal restraints." Equitable relief in an antitrust case, the court wrote,

"should not 'embody harsh measures when less severe ones will do,' nor should it adopt overly regulatory requirements which involve the judiciary in the intricacies of business management. In crafting a remedy specific to the violations, the Court 'is not limited to prohibition of the proven means by which the evil was accomplished, but may range broadly through practices connected with acts actually found to be illegal."
4. Finally, the plaintiffs did not request a structural remedy of dissolution ("a break-up of Microsoft") and instead proposed a remedy which focuses on regulating Microsoft's behavior.

Within those constraints, the district court could range rather widely in crafting specific remedies in this case. That remedy must be tailored to fit the situation before it.

The plaintiffs in this case obviously felt that the court did not go far enough in fashioning a remedy. They may appeal. But we've got a remedy that we're all -- including Microsoft -- going to have to live with at least for now.

You ask whether this decision was made "with the intent of strengthening the overall business climate of the US, especially given the current state of the world economy?" I gather from Judge Kollar-Kotelly's written decision that this wasn't one of the considerations for her. Will it accomplish that goal anyway? Perhaps it will be a modest step forward if we're diligent in our efforts to ensure compliance by Microsoft in every way that is important to us.

Finally, you ask whether the decision will "make perfect sense to the average CEO?" There are no average CEOs. Just like in Garson Keillor's hometown of Lake Wobegon, everyone in such positions is above average. But I can bet you that CEOs of software companies are reading this decision with great interest.

The real question for me: microsoft laptop tax
by sanermind

Does the wording on non-discriminatory licensing to OEMS mean that I will finally be able to purchase most laptops without having to pay a microsoft tax for software I delete as soon as I get it?

Larry:

I sure hope so. The court's decision doesn't require distributors or OEMs to offer that option, but it does prevent Microsoft from entering into exclusive contracts that force distributors or OEM's to impose a "laptop tax."

This discussion has been archived. No new comments can be posted.

Larry Rosen on the Microsoft Penalty Ruling

Comments Filter:
  • Quick Note (Score:5, Informative)

    by DrPascal (185005) on Monday November 11, 2002 @01:29PM (#4643526) Homepage
    and the APIs can be buried in MSDN, forcing OSS software developers to not only subscribe to MSDN, but also follow whatever licensing MSDN forces on users.

    MSDN's documentation and source examples are free ... msdn.microsoft.com has all of it. As a former MSDN subscriber, you get software and EXTRA downloads (ability to try new releases, etc), but the documentation is always freely available. FUD Alert!
    • Re:Quick Note (Score:2, Interesting)

      by Sabalon (1684)
      I will agree about MSDN's ability to bury things. If you don't know what you're looking for you may never find it.

      Too much documentation? Not a good enough search engine? Either way - heaven only knows what they could hide in there saying they made it available.

      Makes the obfuscated C contest look legible!!!
      • Too much in one. (Score:3, Interesting)

        by Flamesplash (469287)
        I know what you mean. I don't use MSDN much, but when I have it wasn't fun.

        I think one of MS's problems in general is that it is simply trying to bundle too much together. For instance, Word, Excell, PowerPoint etc.. many years ago were all seperate applications completely. Then MS went and tried to make them all integrated, which was fine, but it seemed like they went beyond that and tried to make them the same program almost, and that didn't work out too well. Additionally, it seems that if MSN were broken down into smaller pieces it might be more usable.
        • How can people complain about MS not giving enough information and also complain about them giving too much. good lord people! MSDN has ALOT of information, that is because MS has ALOT of things to have information about. True it is a bit difficult to find things sometimes but that is a function of size (and that they use their own shitty siteserver search ). Have you ever tried to use the IBM knowledge base. Everything is there, somewhere. It is impossible to find though.

          Once you find the sections you are looking for in the MSDN they tend to be VERY useful. Bookmark 'em and stop bitching about MS giving to little info and turning around and bitching again about how there is to much info there.
          • I've always assumed that the problems with the MSDN online documentation were just lousy implementation - and, probably, them not really caring. The on-disk documentation is much better, even though it's the same files - the search & index capabilities of MS help make it pretty easy to find stuff. It's almost impossible to find usefull information on the website unless you know exactly what you're looking for already.

            That said, a pretty common way of making information available but useless is to innundate the reader with information - preferable poorly indexed and highly technical and obfuscated. Patent applications are an excellent example of this concept.

    • and the APIs can be buried in MSDN, forcing OSS software developers to not only subscribe to MSDN, but also follow whatever licensing MSDN forces on users.

      That's what makes it not 100% "free". I haven't read MSDN's license (did you?), so I don't know what it says.

      As an example of license fun, Apple's Developer Connection agreement contains the following words:

      5. Verification of Compliance. You agree that authorized Apple representatives, with 24 hours advance notice, may inspect the location where the Prototype is stored, the Prototype and copies of other Confidential Information and your Prototype access log during your normal business hours in order to verify that you are complying with your obligations under this Agreement.

      ("Prototype" is "Apple pre-release software and related documentation and information" .. how do I know when I downloaded that? Does a Beta of QuickTime count?)

      That was enough to make me avoid joining.

      Any tasty nuggets in MSDN's license agreement? Or perhaps, they will add some now..

      Just pointing out that, like RMS, software companies have their own idea of what "free" means.

      • Re:Quick Note (Score:3, Informative)

        by AJWM (19027)
        Any tasty nuggets in MSDN's license agreement?

        It's been a while, but I vaguely remember some terms covering the MSDN documentation of the Word .doc format (such as it is) included verbage to the effect that you had to agree not to use the info in writing a competing word processing application.

        Basically the MSDN info is for people who want to augment Microsoft's wares, not compete with them. (Although they may well find themselves in competition if they come up with something popular.)
  • by waspleg (316038) on Monday November 11, 2002 @01:32PM (#4643547) Journal
    isn't his evil twin sister

  • Contamination (Score:5, Insightful)

    by Uma Thurman (623807) on Monday November 11, 2002 @01:33PM (#4643553) Homepage Journal
    You may have meant one other thing: Under Microsoft's Shared Source licenses you may look at their code. But beware of the conditions under which they show it to you. That software can contaminate you and put your own open source software at risk if you -- even inadvertently -- copy their code. This has nothing to do with the antitrust topic so I'll say no more about that here.

    This is definitely a risk to open source programming. If you've seem Microsoft code, you might not be able to work on a similar open source project. All work you've done can be questioned.

    But this also applies to companies. A company that has access to Microsoft's code could come under scrutiny in the future. MS could just say they copied the code and start investigating or litigating. Some say that the GPL is a "viral" license, but the MS shared source is just a viral, and even more sneaky because the legal implications aren't written down in black and white. At least with the GPL you know up front what the legal consequences of linking a GPL object into non-GPL code will be.
    • Re:Contamination (Score:3, Informative)

      by Anonymous Coward
      You can switch MS for FSF and GPL for closed source in that rant and it's still exactly true.

      You can't look at MS shared source code and suddenly be inspired to write the same thing under a different license without running afoul of copyright law.

      You can't look at GPL code and suddenly be inspired to write the same thing under a different license without running afoul of copyright law.

      A company that has looked at GPL code and produces something similar under a BSD or closed source license could come under scrutiny and the copyright holder could just say they copied the code and start investigating or litigating. This has in fact happened, repeatedly, and people have sued.

      This is a property of copyright and not of any specific license.
      • Re:Contamination (Score:5, Informative)

        by evilpenguin (18720) on Monday November 11, 2002 @02:41PM (#4644105)
        Except, of course, for the fact that the GPL specifically permits you to reuse any part of the code, provided that you license the derivative work under the GPL. You don't have that with Microsoft Shared Source. In other words, you get all of the drawbacks (if you really think they are drawbacks, I don't) of the GPL with exactly none of the benefits.

        In other words, you are wrong in saying the converse is the same. The FSF/GPL allows you to freely copy under the same terms as the code was initially offered. The SSI does not EVER allow you to reuse code. Period. They are not even remotely comparable.
    • It'a the newest funnest open source craze around.
      It's Happy Fun Code!!!
      Caution: Happy Fun Code may suddenly contaminate your open source project.
      Do not stare directly at Happy Fun Code.
      Happy Fun Code has been known to change your long distance carrier and may install software on your somputer.
      Do not taunt Happy Fun Code.
      Happy Fun Code was written by radioactive Hungarian programmers who fell from the sky in Redmond, WA
      When not in use, all knowledge of Happy Fun Code must be removed from your mind through the medical miracle of blunt trauma.
      Happy Fun Code may adhere to your project. Do not attempt to remove Happy Fun Code without legal cousel.
      Happy Fun Code should not be exposed to a functioning judicial system.

    • You make a good point, but remember that the burden of proof will be on Microsoft. They would have to fight a costly, uphill battle in each case where they suspect any "contamination" is taking place. And this is really hard to prove stuff, unless the GPL programmer did blatant cut and pasting.

      In this scenario I'd say that Microsoft is in a more compromised position than the GPL programmer, even if the GPL programmer is in the wrong.

      On top of this, there are ways around this.

      One way is for the GPL programmer to write all her own code, and leave spaces "paste Microsoft function XYZ here". This way no laws are being broken. (Illegal) binaries for such apps can be made available in places like Usenet, P2P, or IRC, while the application web site contains all legal code with instructions on how to patch and compile. Something similar is already happening to Microsoft, with apps compiled with illegally obtained XBox SDK's. The source is freely available on project websites, but binaries compiled using the SDK are only available on USENET, P2P, etc.

      Just my opinion, IANAL.
      -Mani
  • by burgburgburg (574866) <splisken06 @ e m a i l . com> on Monday November 11, 2002 @01:37PM (#4643586)
    Larry says that the sua sponte provision was the straw that he grasped for when he read the decision as the possible good thing from all of this.

    But how likely is it that the Judge will actually exercise this power in anything but the most limited fashion, and if she does that it will not be immediately appealed (possibly by the Justice Department and Microsoft together) and overturned?

    • by Xeriar (456730)
      I don't know about how exactly this plays out in the courts, but I have heard of cases where they pulled stunts like 'Well, releasing any of our APIs would be a security risk!'

      And proceeded to get slapped.
    • > But how likely is it that the Judge will actually exercise this power in anything but the most limited fashion, and if she does
      > that it will not be immediately appealed (possibly by the Justice Department and Microsoft together) and overturned?

      US Justices almost always excercise powers like this in anything but the most limited fashion. Consider that a given; and this is why MS will be pushing the language this agreement, rather than directly testing it.

      And my guess about this agreement is that MS will keep testing this until Judge Kollar-Ketelly loses patience (just as another justice did), & slaps MS down. Then MS will appeal & agrue that Kollar-Ketelly was biassed in the hope they can win another judge who might be more malliable.

      I hope that Judge Kollar-Ketelly will anticipate this tactic, and tries to find an opportunity where if MS appeals, it will be at the cost of one of the many advantages they enjoy from this agreement. A poison pill, if you will.

      Geoff
    • Petitioning the court to act sua sponte will be a more rapid route to relief than starting a case from scratch and taking it through the courts. Along the way, the same avenues of appeal will be available to MS, but the benefit is that a significant question can be addressed quickly.

      Look at this case. Here in 2002, we have a decision about acts which occurred in 1998 in violation of a 1995 consent decree to an earlier antitrust complaint filed by the DoJ. If MS begins to play fast and loose with the ruling, a remedy can be achieved much more quickly
  • by mikers (137971) on Monday November 11, 2002 @01:41PM (#4643606)
    Whew

    "... from Larry Rosen, an attorney who works heavily on open source licensing matters ..."

    I thought I read "Hillary Rosen, an attorney who works heavily against open source licensing matters ..."

    That should have been a slashdot poll option:
    - I have Nightmares about Hilary Rosen chasing me and trying to delete my MP3s.
  • Hogwash (Score:5, Insightful)

    by EccentricAnomaly (451326) on Monday November 11, 2002 @01:43PM (#4643622) Homepage
    Mr. Rosen is coming off as an apologist for the broken legal system. Just my impression maybe, but he seems to be sidestepping questions and trying his darndest not to say anything that offends the legal establishment.

    My impression is that this whole trial was a joke, and served only to line the pockets of many, many J.D.'s. Maybe I'm wrong and this decision really will stop Microsoft's efforts to squash any innovations that it doesn't own...

    I'm wrong all of the time :)
    • Re:Hogwash (Score:4, Insightful)

      by Russ Nelson (33911) <slashdot@russnelson.com> on Monday November 11, 2002 @01:50PM (#4643673) Homepage
      I'm sure that Larry would be happy to agree with you in many cases that the legal system is broken. An attorney's job isn't to fix the legal system. It's to help you live with the existing legal system. You want change, go vote.
      -russ
    • Re:Hogwash (Score:5, Funny)

      by epukinsk (120536) on Monday November 11, 2002 @02:00PM (#4643747) Homepage Journal
      In other news, Tim Bookman in an interview with Plumbers Today refrained from making blanket depricating remarks about plumbing professionals. Posters on the online forum Slashdot reprimanded Bookman for sidestepping inflammatory remarks about plumbers. "He should just accept that plumbers are a bunch of greedy bastards and his profession is a joke," remarked one poster.
    • I'll have to disagree with you there -- Rosen comes off as knowing that the law applies to specifics, not just generalities, and that many of the Slashdot questions given were about related but not directly court-considered issues. If the court didn't mention X, Y or Z then those aren't going to actually be affected by the ruling, in legal terms. You can't ask Rosen to speculate on the possible outcomes since that will be the responsibility of a future judge in a future lawsuit.
    • well he is a lawyer :)

      Besides if he said anything definitive, wouldn't all the slashdot kiddies run around saying:
      "well Larry said...."
    • The Antitrust Act (Score:2, Insightful)

      by podperson (592944)
      I think if you put all this into historical context then the failure of the courts to break up Microsoft's monopoly was only to be expected.

      Historical remedies to monopolies have always been late and ineffectual. (Indeed, the actual presence of anti-monopoly laws is almost unique to the US. Many countries don't seem to care.) The best we can hope for from the courts (and this is optimistic) is that they not be manipulated to help maintain the monopolies.

      Even this hope seems forlorn.

      When you trace newspaper stories about Microsoft's lobbying efforts over the last several years, it is amazing how cheap it is to buy political influence rather than, say, develop better products.

      I remember back in college a drunk law student asked me, "What do you think the Law is for?" I muttered something about public safety, enforcing social norms, protecting property, and he laughed at me.

      "The Law exists to protect the rich from the poor."

      It's protecting Microsoft from us. And it's protecting the MPAA from people who want to skip the advertising on their DVDs.
    • Lawyers need not apologize for the legal system we have.

      Yes, it is slow. Very slow in fact. But, in time the legal system will get it all sorted out.

      What does that mean?

      It means that you can not wrap up Microsoft's antitrust problems by looking solely at the silly judgment handed down by CKK. That is a horrible decision for the technology industry and the entire field of antitrust law.

      It is true that two key issues (attempted monopolization and product tying) were not being resolved by the remedy decision offered by CKK. And, the States may yet still appeal that ruling. For the benefit of the antitrust laws it clearly should be appealed. Simply put, the remedy does not correct illegal acts found by the appellate court giving the district court its instructions. That is pure and simple. The fake settlement now approved by the district judge fails to even attempt to eliminate commingling of code found to be illegal by the appellate court. I can not imagine the appellate court thinking their decision should just be ignored as the district judge has done. She did not and does not have the authority to pick and choose which parts of the appellate decision fit into the settlement and simply ignore the violations of law that do not.

      That having been said however, perhaps it is good that CKK was not given the ability to decide either the attempted monopolization issue or the tying issue. No doubt she would have screw those issues up royal.

      The AOL (Netscape) and SUN private antitrust law suits will take up the attempted monopolization issue (AOL) and product tying (SUN and AOL). And, since the CKK decision does not address those issues at all, Microsoft lost any argument that the AOL and SUN cases should hold off because all illegal acts were corrected in the DOJ/States case. They simply have not been. They were remanded for further litigation and neither party brought them before the district court for further litigation. That simply means they are undecided. Except for one important point.

      The appellate court did lay out the factual findings it wants to see to find attempted monopolization and product tying. And, you can bet the AOL and SUN lawyers are boning up on the facts they need to prove to support such a conclusion. But, keep in mind that both the AOL and SUN law suits go before juries. That means that a jury will decide the facts regarding attempted monopolization (can anyone really think that Microsoft was not trying to monopolize browsers and in turn the internet?) and product tying (again can anyone really think products are not tied if it is impossible not to buy one without also buying the other?).

      Microsoft has lied for years claiming they are not doing when every single person knows they are in fact doing. They lied simply in their effort to avoid legal liability for violating the federal antitrust laws. And, those chickens are highly likely to come home to roost.

      It is too bad that the CKK decision is as meaningless as it is. It does nothing to permit competition in browsers, media players or any other application bundled by Microsoft to preclude competition. Absolutely nothing.

      Worse yet the benefit that others may get from the exposure of APIs benefits Microsoft more than it does OS competitors. Completely opening the source code for XP would benefit Microsoft just as open source benefits Linux now. That is why they try to open the code a bit. But, with the exception of interoperability (which is important) gaining greater access to Microsoft code is of little value for an application developer focused upon the Linux desktop market. It helps those writing for Microsoft platforms. And, that is why the API issue is a non-issue as far as OS competition in concerned. Opening the APIs might help some application markets provided there have not been picked by Microsoft for illegal bundling (i.e. browsers, media players, instant messaging, video players, etc). Having the entire source code for XP is of no value if Microsoft screws all consumers you might want to sell to by first requiring them to buy, install, support and use the Microsoft brand.

      If the market for your product is not "open and fair" not much else matters at all.

      It will take the AOL case to force browsers to be sold separately. And, until that time Microsoft will have succeeded in illegally gaining a new monopoly right under the noses of the stupid DOJ and shortsighted judge.

      And, it will take the SUN law suit to stop Microsoft from tying its desktop systems to Microsoft servers. Yes, that is what the SUN suit is largely up to.

      Let's just hope that neither AOL or SUN settle for money and fail to put into place the necessary adjustments to Microsoft's conduct that will permit fair and open markets for the entire industry. Otherwise, we have the stupid DOJ to credit for all but ruining the computer software industry simply by refusing to enforce the federal antitrust laws (after it wins the case and the appellate court hands it a victory).
      • Given the Esq your name and the length of your reply, it seems a pretty safe bet that you're a lawyer or are trying to become one. So answer me this. If lawyers are not at all responsible for the legal system we live under, how come every time I mention that some law should be changed, and that law happens to be something that might put a lawyer out of work, the answer I get is, "Oh, that'll never change. All the congressmen and senators _are_ lawyers and they'll never let it pass!" Now I realize that not _all_ of them are, but a large preponderance surely are. Isn't that a conflict of interest? And would you really argue that it isn't abused at all, let alone regularly as my instincts tell me from the large amount of circumstantial evidence? Considering there is no practical way for the average person to gather direct evidence, what assurances do we have? Faith in human nature? From opposition to tort reform to government cronyism, there are plenty of things that lawyers have to apologize for, even if not direct responsibility for the enormous amount of legal cruft our society slaves under.

        • Since, I'm feeling cynical today... I'll dig my hole a little deeper...

          I think the law may have originally been intended as a barrier between the people and injustice, but it seems like it also is a barrier between the people and justice. Our laws are obfuscated layers of inane babble that make justice inaccessible to people without the money to pay a lawyer to open a hole in the wall to give them access to justice (or injustice).

          Why are so many laws intentionally vague? Why are the judges and the courts way up on a high pedestal inaccessible to ordinary citizens??
        • First you have to assume it needs fixing.

          I rarely complain about the legal system but that is not because I am a lawyer. Rather it is because I understand how the legal system works.

          For example: I strongly feel the recent decision by CKK is horrible both from the standpoint of the computer software industry and the legal profession. And, the correct response would be to correct it on appeal. See the article on the ProComp site by Robert Bork ( http://www.procompetition.org/ ).

          If the States do not appeal it is the legal system not functioning as it is designed not the failure of the system itself. Individual parties (plaintiffs and defendants) have to fully utilize the system as it is designed.

          Another example also relates specifically to the Microsoft cases. The issues of attempted monopolization and product tying were remanded back to the federal district court but were not taken up by any of the parties. They could have been. The States or the DOJ could have further litigated the attempted monopolization AND product tying issues. Even Microsoft could have insisted upon it. But, they did not. Each had their own reasons.

          But, the way the system works is that those issues remain undecided at this point. That means that AOL, SUN, Burst and even BE can litigate those violations of federal antitrust law. And, they will do so. Those cases are about a lot more than simply getting some bucks for financial damages.

          The system is still at work. The AOL, SUN, Burst and BE cases are pending.

          If successful, AOL will get a judgment forcing Microsoft to sell its browser on the same terms and conditions as anyone else can sell their browser. Same terms and conditions means exactly that. If Microsoft wants to package it with the OS then Opera, Netscape, Mozilla and anyone else who wants to market a browser will have equal opportunity to sell a OS and browser bundle to any and all customers (who would not otherwise be forced to already have that product). This is very different than the suggestions by some that being able to sell yours means that the market is fair and open. No idiot thinks that is the case.

          Browsers should be just like automobiles. If you want to buy a Ford you should never be forced to buy, maintain and drive a Chevy at the same time.

          The idiots at Microsoft want the fools to think being forced to buy a branded browser is acceptable. It never is.

          It is not true with cars. And, it is not true with browswers, media players or any other application. But, it will take a while for the legal system to work out those situations.

          You may not like SUN. Or, you may not like AOL. But, their private law suits have the very real potential of making the DOJ case as meaningless as it can possibly be. It is meaningless today. But, a valid judgment in the AOL case would make it moot.

          You still see comments to the affect that the browser competition is over. But, that is dead wrong. The browser market can be just as fair as the tire market for automobles. A Ford does not have to run on Firestone tires anymore than a Microsoft OS has to include IE. It simply does not have to include any application at all. And, if it does come with applications the consumer should be able to pick and choose.

          Is that the way it is now? Oh hell no. We have a stupid DOJ. They favor monopoly markets for favorite companies. But, the DOJ is not the legal system despite what they say. Thankfully the DOJ does not decide antitrust policy for the US either contrary to their claims. They only decide those issues for one branch of the federal government. They do not decide for Congress. And, they do not decide for the courts.

          Oh, you can argue that CKK was giving the DOJ too much credit in her decision. But, the DOJ is not involved at all in the private antitrust law suits. That means they do not even show up to speak much less attempt to tell the court what they should do.

          In the private antitrust law suits you will have private company versus private company. That even leaves the CATO Institute without an argument to make. A lot of people have made the mistake thinking that the Cato Institute was pro-Microsoft. They are not. They are anti-government. They simply do not think that the government should be involved. While it may be true that they do not like any laws, that kind of position is rather silly. All civilized societies know they have to have any number of laws to monitor and control individual conduct.

          The CATO Institute should be just as pleased to support a 10 billion dollar judgment for AOL along with an injunction unbundling IE. That would be big company versus big company, right? So, why should they favor one or other like so many in the industry seem to want to do? Besides unbundling IE would give Opera a fair shot at the market too, right?

    • EccentricAnomaly wrote:

      > My impression is that this whole trial was a joke,
      > and served only to line the pockets of many, many
      > J.D.'s.

      I don't think the whole trial was a joke, just the non-penalty phase. The original prosecutors did a good job, and despite Jackson's big mouth, an appeals court did uphold most of the counts. The supremes told Microsoft what to do with its appeal. ;)

      Then we had an election, and a Microsoft funded (just under $20,000) senate candidate lost to a dead man (and his widow). That candidate, John Ashcroft, became the new boss of the Department of Justice. He tossed a curtain over the statue of Justice.

      That's when things changed. Suddenly we had a joke of a settlement (settling after someone has been found guilty of crimes, that's new to me). According to the Turney Act, the judge asked for, and got, public commentary. Aside from those discarded as frivolous, two thirds of the comments were against the settlement. The judge blessed it anyway, with minimumal changes.

      > Maybe I'm wrong and this decision really will
      > stop Microsoft's efforts to squash any
      > innovations that it doesn't own...

      Microsoft's recent actions indicate otherwise. The EU's case may give us some hope. If not, the only hope may be to take them down in the marketplace, if their customer's rising anger, and innovative stuff from the likes of Apple, will offset their anticompetitive behavior.

      "At this moment, it has control of systems all over the world.
      And...we can't do a damn thing to stop it."
      Miyasaka, "Godzilla 2000 Millennium" (Japanese version)
  • Answers (Score:5, Insightful)

    by itwerx (165526) <itwerx@gmail.com> on Monday November 11, 2002 @01:43PM (#4643626) Homepage
    Is it just me or are a lot of his responses half-answers and/or downright evasive...?
    • It definitely seems that way to me, like me picked out a small part of a question and went into detail about that, leaving other issues unaddresses (some of which I think SHOULD have been).
    • Re:He's a Lawyer (Score:5, Informative)

      by CharlieG (34950) on Monday November 11, 2002 @02:05PM (#4643791) Homepage
      Of course his answers are half answers or evasive! Lawyers, when talking on broad ground (which this decision is) will give half/evasive answers, because there are SO many exceptions to everything.

      Ask him a SPECIFIC question, and you'll get (if you PAY him for it) as specific answer.

      That's the way the law works - it's not really there to answer broad questions, but very specific ones
    • IANAL, but in my experience, this is just proper use of time in the legal profession. Discussing what might happen in the future is of less value than what has already happened and what is before the court today. If people are unhappy with what comes tomorrow, and it appears that Microsoft is in violation of the agreement, then the judge can make further changes or even penalize them.

      It is certainly not a free-ride for OSS folks. If anything, it may have leveled the playing field, but if you want to win, you'll still need to show up with the better team. I think that's doable.

      -Hope
    • Re:Answers (Score:3, Insightful)

      by eddy the lip (20794)

      And if your local PHB asks if that new intranet software thingy can be made to see what people on the network are doing, what kind of answer will you give him?

      Lawyers are a lot like geeks in many ways - they deal with complex, arcane and occasionally contradictory material, and know that a specific answer to a broad question is almost always a bad thing. They also get asked a lot of poorly-defined (by their standards) questions and have people get annoyed at what is seen as evasiveness, when it's really just an acknowledgement of the hidden complexity of the domain.

      Unlike most geeks, however, lawyers typically have good communications skills.

  • by jeblucas (560748) <(jeblucas) (at) (gmail.com)> on Monday November 11, 2002 @01:45PM (#4643638) Homepage Journal
    This would be much appreciated, and is good editing practice in general. After all, Google thinks this is a real news site. The first appearence of MSDN, OSS, OEM, CKK, API, (ok, MSFT and IBM are probably fine, but it's a maze for non-programmers--set some standards) and on and on and on. I figured out some of them, but I want to get a headache from the gay-porn offtopic posts, not trying to work out what the friggin question is.
  • by Cerlyn (202990) on Monday November 11, 2002 @01:49PM (#4643663)

    Larry Rosen wrote:

    "Just like in Garson Keillor's hometown of Lake Wobegon..."

    This is a quasi-reference to the radio show A Prarie Home Companion [mpr.org] (with Garrison Keillor), a regular segment of which is indeed titled "News from Lake Wobegon" (Keillor's hometown).

    Boy do I feel like an NPR geek for knowning this. Listen it online, or catch it on your local NPR station if you can (in my view, the FM broadcasts sound better, and have much lower bandwidth costs :).

    • "Obscure"?? What spaceship did you just disembark from? Nothing is obscure in the Day of Google.
      -russ
    • Boy do I feel like an NPR geek for knowning this.

      You shouldn't. "A Prairie Home Companion is heard by nearly 5 million U.S. listeners each week on over 511 public radio stations."
    • Hey, I listen to NPR. I listen to a lot of public radio in general (jazz station). I used to listen to Garson Keillor regularly. I own one of his books. It's not *that* far off the map.

      Ever seen Keillor in person? He's one ugly motherfucker. Good voice though.

      Thank you, drive through.
    • Keillor was actually born in Anoka, Minn. Lake Wobegon is fictional.

      I used to think some of the traditions of Lake Wobegon, such as the "Son's of Knute Ice Melt contest" were quaint and comical. Then I read Gaiman's American Gods, and was enlightened as to the real purpose of such ice melt contests.
    • Lake Wobegon is a fictional place. "Woe-be-gone" get it? Not Keillor's *real* hometown.
    • NPR!=PRI (Score:3, Informative)

      by robkill (259732)
      Technically, APHC is not an National Public Radio (NPR) show. It is distributed by Public Radio International (PRI). Your local public radio station has to be a subscriber to PRI in order to broadcast the show.

      NPR [npr.org]

      PRI [pri.org]

    • Boy do I feel like an NPR geek for knowning this.

      If you were a real NPR geek, you'd know that A Prairie Home Companion is not an NPR show. It's produced by Minnesota Public Radio and distributed by Public Radio International.

      And yes, as others have pointed out, Lake Wobegon (where all the women are strong, all the men are good looking, and all the children are above average) is a completely fictional place, not Keillor's home town.
  • XBox? (Score:3, Interesting)

    by MORTAR_COMBAT! (589963) on Monday November 11, 2002 @01:49PM (#4643670)

    It is the *use* of that monopoly power to gain unfair advantage over competitors that is prevented. A company can't, for example, use its monopoly in one business area to gain a monopoly in another business area. It can't use a monopoly in water softening systems to force its customers to buy the company's own salt. It can't use its monopoly to prevent competitors from selling their products through independent distributors. It can't sell products at a loss to force competitors out of business.


    So Microsoft, having been found guilty of having a desktop operating system monopoly, is further digging a hole for itself by selling the XBox at a loss? Or is this too unrelated a business to fall under anti-trust supervision?
    • Re:XBox? (Score:4, Insightful)

      by Russ Nelson (33911) <slashdot@russnelson.com> on Monday November 11, 2002 @01:56PM (#4643716) Homepage
      That's not why it sells the XBox at a loss. It sells it at a loss so that people can afford to buy games which are then profitable.

      Microsoft would be selling at a loss to drive (e.g.) Nintendo out of business if it also sold the games at a loss.
      -russ
    • Re:XBox? (Score:2, Informative)

      by forevermore (582201)
      Unfortunately, selling console systems at a loss seems to be a fairly standard practice. It's my understanding that both Nintendo and Sony do the same thing.
    • Probably OK on XBox (Score:5, Interesting)

      by dmaxwell (43234) on Monday November 11, 2002 @02:03PM (#4643772)
      I would guess that Microsoft is OK on the XBox for now. Selling consoles at a loss and making money on titles is an established practice in the console arena. I don't see them getting in trouble for that. If they dumped games for less than it cost to make them then I think they would be in trouble. I don't see any evidence they're doing that though.

      The other way they could get in trouble is by somehow leveraging the Windows desktop monopoly to bootstrap the XBox. It is not at all clear this is the case. Yes, they are using technology from the NT codebase like the kernel and DirectX but mere use of technology from the desktop won't do it. Where this gets interesting is if Microsoft goes out of their way to make it easy to port games between Windows and the XBox. It would be up to Nintendo or Sony to make something of it.
      • Where this gets interesting is if Microsoft goes out of their way to make it easy to port games between Windows and the XBox. It would be up to Nintendo or Sony to make something of it

        Not really. The Xbox was designed to be "PC-like" from the get-go.

        Sony and Nintendo don't really have much of a cause to raise a stink--if they wanted to make a "PC like" system and then MS sqaushed them, they would, but they don't.

        It's like MS only letting Outlook run on Windows; Apple really doesn't have anything to say about that.
    • ...the first question in every antitrust issue is how to scope the market that is being measured for anti-competitive behavior. It is basically an unanswerable question, although there are criteria (e.g., who are the competitors?) that apply to help guide a court in deciding which market is subject to the court's antitrust analysis. In this case, it seems clear that the XBOX lives in a different market space than Windows. If for no other reason than that the competitors against Windows are (mostly) totally different entities than the competitors against XBOX.
    • Usually, this is called "predatory pricing," a situation where an entrenched vendor sells a product at a loss with the knowledge that they'll be able to soak the lost revenue, while their competitors are forced out of business (through loss of sales, loss of revenue on sales, or both).

      With the consoles, however, pricing yourself below the competition is only half of the story. This type of pricing model is very dangerous with services or goods with a brief shelf-life - for example, airline tickets. But with consoles, there's a whole secondary method by which all of the vendors can make money back: the games. Microsoft breaks even on the Xbox if you shell out for... I think it was three games, which you're pretty certain to do. (Who buys a console and then never buys more than two games for it?) With that in mind, a predatory pricing accusation seems kind of lame.
  • by Zentalon (622905) on Monday November 11, 2002 @01:55PM (#4643706)
    The most significant parts of the court ruling affect Microsoft's relationships with the OEMs (the hardware manufacturers), and specifically give those OEMs a substantially freer environment in which to work. Windows won, thus far, by convincing all OEMs to distribute it (and only it). That made it universally available, so it made sense if you were an application developer to develop apps for it, and it made sense if you were an average consumer or business customer to just take advantage of what you'd inevitably have to begin with.

    But now, with this ruling, FOR THE FIRST TIME, OEMs have the freedom to distribute whatever they want without fearing any kind of retaliation from Microsoft. The point of the trial, as Kollar-Kotelly wrote, was to restore the opportunity for competition in the market. Now we just need to compete. So let's do it. We need to make it compelling to OEMs to distribute Linux, and we need to make sure that there are enough applications available that do enough of the kinds of things users need that home users and business users both find it reasonable to use Linux instead of Windows.

    • I doubt that we will see any of the big OEM's offering their products with Linux this Christmas. They still have to contend with the law of supply and demand, which trumps both Microsoft and the DOJ.

      But we might see many more opportunities to buy a big-name system without any OS at all. I also suspect that we'll see more offerings with Mozilla and OpenOffice.

      p.s. I'm talking about the large OEMs. Many smaller players never entered into exclusive contracts. I've always bought my computers from small mom-and-pop shops, and I always got them Windows-free with a discount.
  • by n0ano (148272) <n0ano@arrl.net> on Monday November 11, 2002 @01:55PM (#4643711) Homepage
    The court appointed an "enforcement committee" to protect the plaintiffs' interests.

    If I rember correctly the "enforcement committee" will be created by, and controlled by,
    the Microsoft board of directors. Given that this board has a slightly vested interest in seeing that the actions of Microsoft remain unchecked what are the odds that this committee will be nothing but a toothless lapdog?

    Making the "enforcement committee" a part of the company it is supposed to monitor is ludicrous and one of the biggest jokes in the entire settlement.

  • Too funny! (Score:3, Funny)

    by Ranger Rick (197) <slashdot&raccoonfink,com> on Monday November 11, 2002 @02:02PM (#4643760) Homepage

    I load up the article, and what do I see?

    Screenshot [befunk.com] ...

  • I feel Mr. Rosen missed the point of my question.

    To put it bluntly, I was asking who is to blame, the judge or the prosecution - was it that the prosecution failed to make its case, or that the judge failed to decide based on the case.

    Now, I personally feel that it was the former - the prosecution failed to make its case, and so the judge decided the case brought.

    Mr. Rosen seems to have either missed the point or side stepped it, but that's just my view.

    Does anybody else have any opinions on this? Was I unclear in my question, or did Mr. Rosen misunderstand it, or did he duck it?

    /me dons Armor, +20 vs flames.
    • To put it bluntly, I was asking who is to blame

      The problem may be that you presuppose that there is blame to be laid. If he disagrees with the assumption implied in your question his answer would not make you happy.

      He may not have ducked your question he may have simply disagreed with your premise.

      =tkk

  • by Cutriss (262920) on Monday November 11, 2002 @02:06PM (#4643796) Homepage
    Your real question, I guess, is hidden in your leading comment, that Microsoft is "pretty much doing what they want these days." After this antitrust decision, they're going to be watched intensely for evidence of anticompetitive behavior. I don't think they're going to be doing only what they want, at least for a few years.

    <vader>I find your proliferation of faith disturbing...</vader>

    I don't think I'm being too paranoid when I say that I agree with the questioner. Microsoft has already had its warnings in previous suits. In the media, the winning and losing parties always have some one-liner to say about trial results that goes something along the lines of "This case demonstrates that ___".

    I think we can easily say that "This case demonstrates that even the government is too dependent upon Microsoft (technologically, likely contractually, and *definitely* economically) to put a stop to their offenses committed against businesses and consumers."
    • They just think they are too dependent upon Microsoft.

      And, that is why the DOJ looks so stupid in what they did.

      In their effort to avoid enforcing the antitrust laws (by agreeing to a settlement that fails to stop acts found illegal by the appellate court), they have rendered enormous harm to all consumers and the computer software industry itself. That is pure stupidity at work on the part of our government.

      And, unless the AOL and SUN law suits are successful in forcing Microsoft to sell separate products separately, fairly and in full competition with others; the harm will remain for a long time. Or, at least until the desktop Linux market becomes dominant or at least highly significant (30% or more of the desktop PC marketplace).

      The Linux desktop market is likely to get to 30% or so before too long and it will not stop there. It is just too bad that the DOJ is so ignorant as to make that time stretch out simply because a convicted monopolists wants it to.

    • The Economist had a terrific article on this point, but the link is not free (actually, if you have AvantGo on a PDA, you can subscribe to the channel for The Economist and get it for free, which is how I read it).

      The article is here: Was the big trial a waste of time? [economist.com]

      The executive summary, for those who don't want to take the time or spend the money to read it, goes as follows: The real benefit of the antitrust suit is not in the ruling, but that the trial itself aired all sorts of dirty laundry, causing both OEMs and consumers to grow more wary of Microsoft's behavior. People who used to trust Microsoft don't trust them any more. The failure of Passport and the new initiatives in many governments to adopt OSS only are two examples of how this mistrust has affected them.

      I'm not trying to be a Polyanna here, but there has been a good bit of damage done to Microsoft by this case already, even if they get by without a penalty.

  • So, when MS's hold on computer makers is released and they start shipping systems with linux installed it seems like we'll simply start hearing people complain that they can't get a system with linux XYZ installed because some other linux is more well known and therefor DELL/COMPAQ/GATEWAY etc... will ship that version over others.

    How does one decide which linux is the linux to be shipped?

    Just because there is more than one way to do something doesn't mean it should be done that many ways.
  • by Myrv (305480) on Monday November 11, 2002 @02:12PM (#4643842)
    Where do filesystem formats fall in this settlement. Is a filesystem considered an API with respect to this ruling or is it completely ignored. And if it's included does it fall under the required to release category or can Microsoft still hide it claiming security concerns (or some such nonsense).

    I've been eagerly anticipating a stable (and safe) NTFS writable module fr linux but it won't happen until MS is forced to release the specs.

    • by epukinsk (120536) on Monday November 11, 2002 @02:59PM (#4644262) Homepage Journal
      What makes you think kernel developers are waiting on the spec? From the Linux NTFS page:
      "If this sounds like a lot of work, then you probably understand how hard the task has been. We now understand pretty much everything about NTFS and we have documented it for the benefit of others: http://linux-ntfs.sourceforge.net/ntfs/index.html [sourceforge.net]"

      It sounds to me like the bulk of the work to be done is implementation. I think they have the specs pretty well figured out.
      • Not Quite (Score:3, Informative)

        by Myrv (305480)
        From the second page of your link
        • Accuracy

          Microsoft hasn't released any documentation for NTFS. These documents have been pieced together partly by carefully reading all the SDKs and Windows help but mostly by reverse-engineering the filesystem.

          We're confident that the information is correct. We think we know where there are gaps in our knowledge. We may be wrong. Beware.

        Emphasis mine, but this is why the write option for NTFS in the linux kernel is still marked as dangerous.

        For specific problems look here at their unknown [sourceforge.net] list. Some of these questions could prove catastrophic if they guess the wrong answer.

        Microsoft has not released the specs and until they do its all pretty much guesswork, something I don't want happening with my filesystems.

  • by ethereal (13958) on Monday November 11, 2002 @02:28PM (#4643997) Journal
    Reverse engineering may be done only if Microsoft allows it in their licenses. Consult a lawyer before you reverse engineer something.

    Is this true? Since reverse engineering has been deemed legal in the U.S. in at least some circumstances (Phoenix BIOS, for instance) and it's unlikely that anyone granted a right to reverse engineer in their licenses, it seems strange to state that a license is required to reverse engineer. Is this some new legal doctrine, or just a confusing answer?

  • I hate when people here argue about the "microsoft tax" feeling that if windows
    wasn't bundled the computer they were purchasing
    would be $200 cheaper.

    First off I think OEM's pay something like $15 per liscense for windows. That means if there were any discount it would only be $15 at most.

    Second you need to look at the fact it costs far more to make a computer to different specs. That means a computer with no OS costs MORE to make, that means that you actually get a discount for ordering your computer the same way that a billion other users ordered it.

    Last you should examine the price, how many $999 or $1199 or $1399 computers have you see on the market? You think that is a direct refelection of the cost of goods? No not really, computer companies pick numbers that look good from a marketing stanpoint when they set retail prices. So if computers all came OS free then you would see computers for the same price as when you buy windows.

    With that said quit whining "microsoft tax" and realize that you pay nothing to get that bit of plastic and have the computer ready to boot. If you don't want windows its just as fast to install linux whether windows is on the machine or not.

    One thing the anti-trust case will do is allow some vendors that have enough demand to start up an assembly line that installs linux as the last step instead of windows. This didn't happen before because there was a cost to the company because of microsofts anti-competative licence as well as the cost to start up the alternative assembly line to install the alternate OS. Now you just have the cost of that assembly line and we will see if that drops under the bar to get the PC's produced. I would say that if it does you will see Compaq and Dell computers with linux within 6 months. Otherwise you will know its too expensive for those companies (for one reason or another) to start installing alternate OS's and they don't think they can recoup the costs.

    • by iplayfast (166447) on Monday November 11, 2002 @02:49PM (#4644168)
      First off I think OEM's pay something like $15 per liscense for windows. That means if there were any discount it would only be $15 at most.
      Then why am I charged closer to 100 for it?

      Second you need to look at the fact it costs far more to make a computer to different specs. That means a computer with no OS costs MORE to make, that means that you actually get a discount for ordering your computer the same way that a billion other users ordered it.

      Not my concern if your manufacturing methods are not optimal. Seems to me the last step in manufacturing a computer is to copy the software on. If it costs you more to not put software on a computer, there is something wrong with your company!

      Last you should examine the price, how many $999 or $1199 or $1399 computers have you see on the market? You think that is a direct refelection of the cost of goods? No not really, computer companies pick numbers that look good from a marketing stanpoint when they set retail prices. So if computers all came OS free then you would see computers for the same price as when you buy windows.

      Apparently not! [walmart.com]

      • Then why am I charged closer to 100 for it?

        Several reasons... First because you'll PAY $100 for it (not meaning you specifically, but you in the general public sense).. Businesses with 1,000 or 10,000 users simple cannot afford (or at least, will not pay) $100 per seat for an OS.. Same with OEM's. Businesses and OEM's don't need boxes or even media for each PC.. All they need is one or two "masters" and licensing for each install. Also, I'm assuming part of the OEM licensing stipulates that the OEM is responsible for all support, media replacement, etc.. Whereas in the end user version Microsoft is responsible for all of this. Long story short, OEMs act as wholesalers and get wholesale pricing, whereas the version you go to CompUsa and buy is a retail version, subject to retail pricing.

        Not my concern if your manufacturing methods are not optimal. Seems to me the last step in manufacturing a computer is to copy the software on. If it costs you more to not put software on a computer, there is something wrong with your company!

        Think of it this way (warning, bad car analogy ahead), let's say you want to buy a new Honda Accord, but without seats. You scream and yell at the dealer that because you want the car without seats it should be CHEAPER, after all, Honda doesn't have to pay for the seats to go in your car. What the original poster was trying to say (applied to my cheesy car analogy) is for Honda to sell a car without seats, it has to alter its assembly line, or have someone come in a remove the seats AFTER they were installed on the assembly line. If 99.99% of car buyers want seats in their car, why does that mean there's something wrong with the company if they are setup to include them in every car?

        That said, it's *possible* that the smaller mom-and-pop PC stores that build their own PCs will pass the $15 - $30 savings on to you if you want your custom built PC with no OS, but as the earlier poster pointed out, the large PC farms are simply not setup to do this at this point because there is little to no demand for it.

        Keep in mind everything above refers to desktop PCs and laptops.. Last I checked Dell offered RedHat Linux and No OS as software options for their PowerEdge servers.. Maybe now you'll get your $15 discount you guys have been screaming about. Wow, $15 off $4,0000, what a deal.

        Shayne

        • Then why am I charged closer to 100 for it?

          Several reasons... [snip]

          I think you misunderstood. I meant why am I charged about $100 more for a PC with windows then one without. I was disagreeing with the $15 price the original poster made. I wasn't talking about "on the self" versions (which here in Canada go for closer to $150).

          Your right about your car analogy. It is bad. ;) A high volume PC producer has a master hard disk that he bulk copies to every "drive C:" hard disk he sells inside a computer. This takes time. They also have options to have second hard disks added to the system (which are blank). To "alter the assembly line" in this case, means, give him one of the blank ones. A better analogy would be, viewing the car options. Do you want it with a radio or not.

          On the otherhand, I only deal with the Mom and Pop hardware stores, since they usually have a better idea of what's what, and provide better service. (how about that!) They will also sell me a computer for only the cost of the parts plus a reasonable percent (that doesn't include penalties for not buying some particular item or software).
    • That means if there were any discount it would only be $15 at most.
      That's fine with me. It's the principle of the thing I'm worried about. What about companies that buy thousands of machines per year, only to reinstall Windows on them using their volume license agreement? $15 may not be much to you and me, but if you're buying 100 identical machines, then it starts to add up.
      That means a computer with no OS costs MORE to make, that means that you actually get a discount for ordering your computer the same way that a billion other users ordered it.
      Fine. Ship me the box without that goofy Windows sticker on it. It will have Windows on it, but it won't work.
    • First off I think OEM's pay something like $15 per liscense for windows. That means if there were any discount it would only be $15 at most.

      Anyone have any real information to back this up, or is this just a number you pulled out of your ass to make your argument?
  • by Anonymous Coward on Monday November 11, 2002 @02:29PM (#4644008)
    It can't sell products at a loss to force competitors out of business.

    What does this mean for X-Box?

    Or perhaps even Internet Explorer?
    • Internet Explorer is one they 'sold at a loss' - i.e., gave away free - which was an illegal maintenance of their monopoly - which may or may not have been gained by illegal means (but the court says no the monopoly is OK; it's just what you did with it that was bad).
    • by tshak (173364)
      The key phrase here is "to force competitors out of business". The XBox is sold at a loss because that's part of the console business. I know many will cry "but Gord says that's a myth!", but it's not. Loss-leaders have been a part of many businesses for a long time, and Microsoft's larger-than-usual loss is easily justified by it's larger-than-usual attach rate (number of games, controllers, etc. sold per unit).

      Internet Explorer is to Netscape as Explorer was to "DOS file browsers". What used to be a seperate product is now a trivial and ubiquitous function of a computer, and therefore packaged as a value added feature to an OS. You can dissagree with the technical design, but it's not your product to design. The fact of the matter is that browsing the web has because a fundamental feature of almost every gadget. If that doesn't sell you, think about Trumpet Winsock before the days of Dialup Networking or a TCP/IP stack being built into Windows. TCP/IP stacks used to be a product space. Did Microsoft "abuse their monopoly" by giving customers something that they wanted, and therefore crushing the "competition"? And not to troll, but the release of a substandard browser (3.0 was great, I'm talking about Communicator) really didn't help the situation for Netscape either.
  • by paranoic (126081) on Monday November 11, 2002 @02:29PM (#4644009)
    But as any lawyer will point out, these aren't answers, but opinions. Learn the difference.
  • by Kinniken (624803) on Monday November 11, 2002 @02:34PM (#4644049) Homepage
    The trial Microsoft is facing in Europe is far from over, and it could potentialy be far more serious than the one in the US; the EU has a tradition of harsher antitrust measures. And in any case, Microsoft's legal victory does not necessarily mean much... Remember IBM, they won their trial, were declared unstoppable by most industry analists, and in the end lost out to Microsoft. The Economist's paper [economist.com] makes a convincing case for the IBM/MS comparison.
    • Hook me up with an EU lawyer and we'll do a separate interview or interview-based story. Larry Rosen is a lawyer who practices in the U.S., and he was commenting on a U.S. case.

      - Robin

      (I assume yoiu can find my email address; every spammer in the world certainly has...)
    • And in any case, Microsoft's legal victory does not necessarily mean much...

      Amen! How soon do people forget their history. We do not live in a static universe. It's very dynamic. A monopoly cannot long survive in the face of constantly changing economics and technologies. IBM was already losing its monopoly on the mainframe before the government stepped in, because the mainframe was already being relegated to a niche.

      Microsoft is in the same situation. It may look like they have a monopoly on the desktop, but what they really have is a monopoly on new users. That stream of new users is now drying up. For the first time, they now have to market to their existing customer base. That customer base might not migrate to Linux, BSD or Mac, but a heck of a lot of them are choosing not to upgrade.

      Microsoft is losing the power of its monopoly. That's why they're so desperate to branch out into new fields like DRM, tablets, and services.
  • Who's this "we"? (Score:3, Insightful)

    by benedict (9959) on Monday November 11, 2002 @03:04PM (#4644315)
    Larry, in your answers, you repeatedly assert that
    "we" should watch Microsoft carefully for settlement
    violations, presumably because we can do something
    about it if we catch any.

    It's the latter that I'm dubious about. Don't
    violations have to be pursued by the Justice
    Department? In the current political climate,
    what are the chances of that ever happening?
  • Near the end he made the key point most are missiing. The anti-trust lawsuit was about business practice not technology practice. Most of you are looking at this from a developer point of view and in reality very little of this lawsuit was about technology issues. You wanted it to be, and talked about it as if it was, but bottom line it was about MS's business practices. From that standpoint MS lost and it will help you when it comes the the MS tax and other companies getting their app's in the Windows desptop, but in trying to force MS to give up all their source and so forth it doesn't.
  • Not reassuring.. (Score:3, Insightful)

    by Ogerman (136333) on Monday November 11, 2002 @04:37PM (#4645143)
    One representative from Microsoft personally reassured me several times over the past few year that her company does not intend to charge high royalties for licenses to patents. Perhaps that also means that her company won't attempt to stifle competition by charging higher royalties than the open source community can afford.

    "Reasonable royalties" are not acceptable and are, in fact, incompatible with Free Software to begin with. Software patents need eliminated altogether. They are 100% anti-innovation and anti-free-market. I will not pay one dime to M$ for their supposed software patents and neither should ANY other members of the Open Source community, even if it comes to outright civil disobedience. It's a shame the US patent office was stupid enough to start accepting them in the first place. Time for some reform I think.
  • OK. Let's see what happens when we try and make Microsoft open up some communications protocols.

    The Wine project currently faces a problem. The Windows help system doesn't work, and it's proving hard to recreate, because when you call the WinHelp32 APIs, some wierdo messages are passed to and from the APIs to the winhelp executable. This means they can't use the native WinHelp exe, as they don't know how to recreate the API section. As this is a case of internal message passing, I think it could be safely considered a communications protocol, and it's definately not related to DRM or security. The protocol exchange isn't complicated, but it does vary between Win9x and NT

    So how do we get Microsoft to give us a report on what these messages mean? I mean, what do we do first? Is there an email address I can send a request to? What happens if they simply laugh me off? They are big, and I am small - how can I enforce this? Anybody??

  • by jafac (1449) on Monday November 11, 2002 @05:04PM (#4645362) Homepage
    It seems that, if you can get a court to accept your definitions of terms, you can watch your opponent's proposed remedies disappear in the wind.
    - - -

    Let's change the definition of "murder" then:
    abortion
    euthanasia
    execution
    self defense
    "needed killin'"
  • by Get Behind the Mule (61986) on Monday November 11, 2002 @08:23PM (#4646951)
    I rejoiced when Judge Jackson's Findings of Facts were handed down. I had been convinced that no judge, no lawyer could possibly understand the technical and business issues related to M$'s misconduct, and the Judge slam-dunked me.

    But by now, the Court of Appeals, Judge CKK and now Larry Rosen have convinced me that I was right all along, and Thomas Penfield Jackson was a rare anomaly (who sadly shot his mouth off too much). However much you may resent it, Larry, the fact is that judges and lawyers just don't know jack about software -- the technology, the business or even the law.

    Here's the problem: Again and again, Larry Rosen says that we will have to be "vigilant" and so on about enforcing the terms of this behavioral remedy. But all the vigilance in the world is doomed to fail because Microsoft is an incorrigible scofflaw. And this was well-known when the anti-trust case began.

    The case concerning the Netscape and Explorer browsers began because M$ was violating a consent decree of 1995. Then, as now, a judge told them to stop doing what they were doing. They went ahead and did it anyway, and after seven years, and after the nearly total elimination of Netscape from the browser market, the court system is still
    struggling to decide what to do about it, still telling them to never never, by golly never ever ever do that stuff again.

    Here's a vision of the future: M$ exploits Palladium to completely destroy Linux and all GPL'd software. I'm not talking about thwarting growth and limiting market share; I'm talking about "cutting off the air supply" and achieving nearly total destruction, as they did with Netscape. And if need be, they will violate the terms of Judge CKK's ruling to make it happen. What the hell?, cackle Bill & Steve! Back in the day we didn't let that consent decree stop us either, now did we?

    "Zounds!", cries Larry Rosen! "Why, don't you dare!", bellows Judge CKK! "But we're innocent!", retorts Bill Gates, while rocking back & forth in his chair! And back we go to the courtroom.

    Fast forward 10 years. Linux has been dead for five years, now a curiosity that is only used by about five die-hards. (Linus Torvalds is slinging Windows code for Loudcloud.) Slashdot apologists for M$ are insisting that only Linux was to blame ("That stuff was so hard to install!"). The case has been up to the Supreme Court and back, and wouldn't you know, M$ is eventually found guilty of violating Judge CKK's rules -- just like they violated that pesky old consent decree of 1995. But hey, tech markets move so fast, don't ya know, and Linux is already dead, after all (just like Netscape was way back in 2002). So look, let's not do anything drastic, let's just give M$ a behavioral remedy, and by God, we will enforce it vigilantly this time.

    Larry Rosen argues for behavioral remedies as the proper means of restoring benefits to consumers, and I can see the sense of doing this after a company has been found guilty the first time. But we are looking at a recidivist, a crook that is guaranteed to look for loopholes in behavioral remedies wherever they can be found. They ignored the 1995 ruling; isn't that enough?

    Seriously, is there any doubt in anyone's mind that M$ will circumvent, cut corners, and if possible violate the terms of CKK's judgment, no matter how "vigilant" anyone professes to be? Come on, Larry, who are you kidding?

    Behavioral restrictions and "vigilance" are useless against a proven incorrigible such as M$. The only solution can be a destructive, structural remedy that simply eliminates the recidivist altogether: Breakup.

"You don't go out and kick a mad dog. If you have a mad dog with rabies, you take a gun and shoot him." -- Pat Robertson, TV Evangelist, about Muammar Kadhafy

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