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diff --git a/talermerchantdemos/blog/articles/en/ms-doj-tunney.html b/talermerchantdemos/blog/articles/en/ms-doj-tunney.html new file mode 100644 index 0000000..27c5a72 --- /dev/null +++ b/talermerchantdemos/blog/articles/en/ms-doj-tunney.html @@ -0,0 +1,341 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.77 --> +<title>FSF Statement in Response to Proposed Revised Final + Judgment in Microsoft vs. United States +- GNU Project - Free Software Foundation</title> + +<!--#include virtual="/philosophy/po/ms-doj-tunney.translist" --> +<!--#include virtual="/server/banner.html" --> + +<h2>FSF Statement in Response to Proposed Revised Final Judgment + in Microsoft vs. United States</h2> + + <p>January 28, 2002</p> + + <p>Renata B. Hesse<br /> + Antitrust Division<br /> + U.S. Department of Justice<br /> + 601 D Street NW<br /> + Suite 1200<br /> + Washington, DC 20530-0001</p> + + <p>Dear Ms Hesse,</p> + + <p>I am Professor of Law at Columbia University Law School in New + York, and General Counsel (<i>pro bono publico</i>) of the Free + Software Foundation, a non-profit §501(c)(3) corporation + organized under the laws of the Commonwealth of Massachusetts, with + its headquarters in Boston. I make this statement under the + provisions of 15 U.S.C. § 16(d) concerning the Proposed Revised + Final Judgment (hereinafter “the Settlement”) + in <i>United States v. Microsoft Corp</i>.</p> + + <p>The remedies sought to be effected in the Settlement are, in + their broad outline, appropriate and reasonable measures for the + abatement of the illegal conduct proven by the United States at + trial. The goal of such remedies is to require that Defendant + affirmatively assist the restoration of competition in the market in + which the Defendant has been shown to have illegally maintained a + monopoly in violation of 15 U.S.C. §2. The remedies embodied in + the Settlement would substantially achieve that goal, appropriately + furthering the Government's pursuit of the public interest, if the + Settlement were amended to rectify certain details one-sidedly + favorable to the Defendant's goal of continuing its illegal + monopoly.</p> + + <p>Defendant—in the interest of continuing unabated its + illegal monopoly—has artfully drafted certain clauses of the + Settlement so as to hobble potential competition, giving the + appearance of affirmatively assisting to undo its wrong, but + covertly assisting instead in its continuance.</p> + + <p>The District Court found that the Defendant had illegally + maintained a monopoly in the market for Intel-compatible PC + operating systems. (Findings of Fact, November 19, 1999, ¶19.) + The mechanism of that monopolization, the court found, was the + attempt to establish exclusive control of “application program + interfaces” (“APIs”) to which applications + developers resort for operating system services, so as to prevent + the possibility of “cross-platform” development + threatening Defendant's operating systems monopoly. (Findings of + Fact, ¶80 and <i>passim</i>.)</p> + + <p>The Settlement accordingly makes appropriate provision to + require Microsoft to provide access to full and complete + technical information about its APIs on non-discriminatory terms, + so as to prevent Defendant's prior conduct in erecting artificial + and illegal barriers to entry to the monopolized market.</p> + + <p>But the precise terms of the Settlement create a series of + artful technical loopholes vitiating the primary intention.</p> + + <p>Section III(D) provides that:</p> + + <blockquote> + <p> + Starting at the earlier of the release of Service Pack 1 for + Windows XP or 12 months after the submission of this Final + Judgment to the Court, Microsoft shall disclose to ISVs, IHVs, + IAPs, ICPs, and OEMs, for the sole purpose of interoperating with + a Windows Operating System Product, via the Microsoft Developer + Network (“MSDN”) or similar mechanisms, the APIs and + related Documentation that are used by Microsoft Middleware to + interoperate with a Windows Operating System Product. (emphasis + added) + </p> + </blockquote> + + <p>The “sole purpose” requirement means that Defendant + does not have to make any such API information available to + developers of software whose purpose it is to make competing + Intel-compatible PC operating systems. Only those who make programs + that interoperate with Windows Operating Systems Products may + receive such information. Under § III(I)(3), an applications + developer who has received licensed information concerning + Defendant's APIs could be prohibiting from sharing that information + with a maker of a competing Intel-compatible PC operating system, + for the purpose of interoperating with that competing product. Under + §III(I)(2), if a potential competitor in the market for + Intel-compatible PC operating systems also makes applications + products, it can even be prohibited from using licensed information + it receives in order to make those applications interoperate with + Defendant's products also interoperate with its own competing + operating system. +<span class="gnun-split"></span>What should be a provision requiring Defendant to + share information with potential competitors in the monopolized + market turns out, after Defendant's careful manipulation, to be a + provision for sharing information “solely” with people + other than competitors in the monopolized market. The same language + has been inserted into §III(E), thus similarly perverting the + intention of the Settlement with respect to Communications + Protocols.</p> + + <p>Defendant has not merely engaged in this undertaking with a + goal to the exclusion of potential future competitors from the + monopolized market. In the teeth of the evidence, long after + having been proved to have behaved with exaggerated contempt for + the antitrust laws, Defendant is attempting in the very Judgment + delivered against it to exclude from the market its most vigorous + current competitor.</p> + + <p>Defendant's most significant present challenger in the + Intel-compatible PC operating systems market is the collection of + “free software,” which is free in the sense of freedom, + not necessarily in price: thousands of programs written + collaboratively by individuals and organizations throughout the + world, and made available under license terms that allow everyone to + freely use, copy, modify and redistribute all the program code. That + free software, most of it licensed under the terms of the Free + Software Foundation's GNU General Public License (“the + GPL”) represents both an operating system, known as GNU, and + an enormous corpus of applications programs that can run on almost + all existing architectures of digital computers, including + Intel-compatible PCs. +<span class="gnun-split"></span>Through one such free software component, an + operating system “kernel” called Linux, written by + thousands of individuals and distributed under the GPL, the GNU + operating system can execute on Intel-compatible PC's, and by + combining Linux with other free software, GNU can perform all the + functions performed by Windows. Non-Microsoft Middleware can execute + on Intel-compatible PCs equipped with components of GNU and Linux. + Intel-compatible PCs so equipped currently account for more than 30% + of the installed server base in the United States, according to + independent industry obsevers.</p> + + <p>The District Court found that “by itself, Linux's + open-source development model shows no signs of liberating that + operating system from the cycle of consumer preferences and + developer incentives that, when fueled by Windows' enormous + reservoir of applications, prevents non-Microsoft operating systems + from competing.” (Findings of Fact, November 5, 1999, + ¶50.) (referring, confusingly, to the combination of GNU, + Linux, and other programs simply as “Linux.”) The + District Court correctly found that in order to compete effectively + with Defendant in the desktop operating systems market for + Intel-compatible PCs, systems equipped with the free software + operating system should be able to interoperate with “the + enormous reservoir” of Windows applications.</p> + + <p>There is no inherent barrier to such interoperation, only an + artificial barrier illegally erected by Defendant. If Defendant were + required to release information concerning its APIs to the + developers of free software, GNU, Linux, the X windowing system, the + WINE Windows emulator, and other relevant free software could + interoperate directly with all applications that have been developed + for Windows. Anyone could execute Windows applications programs + bought from any developer on Intel-compatible PC's equipped with the + competing free software operating system. And because, as the + District Court found, the cost structure of free software is very + much lower than Defendant's, the competing operating system product + is and would continue to be available at nominal prices. (Findings + of Fact, November 5, 1999, ¶ 50.)</p> + + <p>That would be too effective a form of competition, from the + Defendant's point of view. For this reason, Defendant has included + in the Settlement the terms that exclude from API documentation + precisely those to whom it would be most logically addressed: + potential competitors seeking access to the monopolized market. If + the Settlement were enforced according to its intention, the result + would be immediate and vigorous competition between Defendant and + the parties against whom, the District Court found, Defendant was + illegally maintaining a barrier. The Settlement should be amended to + level that barrier, which the current language inserted by Defendant + artfully maintains. The language of §§III(D) and III(E) + should be amended to require Defendant to release timely and + accurate API information to all parties seeking to interoperate + programs with either Windows Operating System Products or + applications written to interoperate with Windows Operating System + Products.</p> + + <p>For the same reason, Defendant's attempt to continue denying the + free software development community access to its APIs through the + imposition of royalty requirements, in §III(I)(1), should be + removed. As the District Court recognized, free software development + means that everyone in the world has access, without payment of + royalties or prohibition of redistribution, to the “source + code” of the software. All APIs and other interfaces are fully + available at all times to anyone who wants to interoperate with the + existing programs. This, and the ability to reuse existing program + code in new programs without payment of royalties or license fees, + permits vast numbers of interoperable, high-quality programs to be + written by a mixture of volunteers and professional project + developers for free distribution. +<span class="gnun-split"></span>By authorizing Defendant to engage + in non-reciprocity by charging royalties for the same information + about its programs, thus purposefully ousting volunteer developers, + and by prohibiting “sublicensing,” thus precluding + profit-making developers from seeking interoperability with + volunteers, the Settlement is craftily perverted into a mechanism + whereby Defendant can continue to withhold API information so as to + preclude the operations of potential competitors. The Settlement + should be modified so that §III(I)(1) requires reciprocity, by + precluding the imposition of royalties on developers who make their + own APIs fully available without payment of royalties or license + fees, and so that §III(I)(3) precludes limitation on + sublicensing, and requires Defendant to release API information on + terms reciprocal to those on which competitors make their own API + information available.</p> + + <p>In one additional provision Defendant has attempted to subvert + the intention of the Settlement in order to preclude effective + competition by the Intel-compatible free software operating + system. Under § III(J)(1), Defendant may refuse to disclose + “portions of APIs or Documentation or portions or layers of + Communications Protocols the disclosure of which would compromise + the security of anti-piracy, anti-virus, software licensing, digital + rights management, encryption or authentication systems, including + without limitation, keys, authorization tokens or enforcement + criteria.” This provision is so indefinite that Defendant can + be expected to argue that all APIs and Communications Protocols + connected with the security and authentication aspects of electronic + commerce (including especially “without limitation” keys + and authorization tokens, which are the basic building blocks of all + electronic commerce systems) can be kept secret. +<span class="gnun-split"></span>At present, all + such protocols and APIs are public, which is appropriate + because—as computer security experts would testify if, as it + should, the District Court seeks evidentiary supplementation under + 15 U.S.C. 16(f)(1)—security is not attained in the computer + communications field by the use of secret protocols, but rather by + the use of scientifically-refereed and fully public protocols, whose + security has been tested by full exposure in the scientific and + engineering communities. +<span class="gnun-split"></span>If this provision were enforced as + currently drafted, Defendant could implement new private protocols, + extending or replacing the existing public protocols of electronic + commerce, and then use its monopoly position to exclude the free + software operating system from use of that de facto industry + standard embodied in its new unpublicized APIs and Protocols. + Defendant then goes further in § III(J)(2), according to itself + the right to establish criteria of “business viability” + without which it may deny access to APIs. Considering that its + primary competition results from a development community led by + non-profit organizations and relying heavily on non-commercial and + volunteer developers, one can only conclude that Defendant is once + again seeking the appearance of cooperation with the rule of law, + while preparing by chicane to deny its injured competitors their + just remedy.</p> + + <p>The Free Software Foundation not only authors and distributes + the GNU General Public License, and in other ways facilitates the + making of free software by others, it also manufactures and + distributes free software products of its own, particularly the + GNU operating system, and sells compilations of its own and + others' free software. The Foundation sustains specific injury + from the violations set forth in the complaint that are not + remedied by (and indeed are specifically excluded from) the + Settlement. The Foundation and the other free software developers + with whom it acts are the single most significant competitor to + the Defendant in the monopolized market, and the adoption of the + Settlement as drafted, with its terms so carefully designed by + Defendant to preclude its effective competition, would be a + travesty. We urge that the Settlement be amended as we have + described.</p> + + <p>Very truly yours,<br /> + Eben Moglen</p> + +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to +<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. +There are also <a href="/contact/">other ways to contact</a> +the FSF. Broken links and other corrections or suggestions can be sent +to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. However, we are not exempt from imperfection. + Please send your comments and general suggestions in this regard + to <a href="mailto:web-translators@gnu.org"> + <web-translators@gnu.org></a>.</p> + + <p>For information on coordinating and submitting translations of + our web pages, see <a + href="/server/standards/README.translations.html">Translations + README</a>. --> +Please see the <a +href="/server/standards/README.translations.html">Translations +README</a> for information on coordinating and submitting translations +of this article.</p> +</div> + +<!-- Regarding copyright, in general, standalone pages (as opposed to + files generated as part of manuals) on the GNU web server should + be under CC BY-ND 3.0 US. Please do NOT change or remove this + without talking with the webmasters or licensing team first. + Please make sure the copyright date is consistent with the + document. For web pages, it is ok to list just the latest year the + document was modified, or published. + + If you wish to list earlier years, that is ok too. + Either "2001, 2002, 2003" or "2001-2003" are ok for specifying + years, as long as each year in the range is in fact a copyrightable + year, i.e., a year in which the document was published (including + being publicly visible on the web or in a revision control system). + + There is more detail about copyright years in the GNU Maintainers + Information document, www.gnu.org/prep/maintain. --> + +<p>Copyright © 2002 Free Software Foundation, Inc.</p> + +<p>This page is licensed under a <a rel="license" +href="http://creativecommons.org/licenses/by-nd/3.0/us/">Creative +Commons Attribution-NoDerivs 3.0 United States License</a>.</p> + +<!--#include virtual="/server/bottom-notes.html" --> + +<p class="unprintable">Updated: +<!-- timestamp start --> +$Date: 2014/04/12 12:40:28 $ +<!-- timestamp end --> +</p> +</div> +</div> +</body> +</html> |