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<title>FSF Statement in Response to Proposed Revised Final
Judgment in Microsoft v. United States
- GNU Project - Free Software Foundation</title>
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<div class="article reduced-width">
<h2>FSF Statement in Response to Proposed Revised Final Judgment
in Microsoft v. United States</h2>
<div class="thin"></div>
<p>January 28, 2002</p>
<address>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</address>
<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>
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