ms-doj-tunney.html (18539B)
1 <!--#include virtual="/server/header.html" --> 2 <!-- Parent-Version: 1.96 --> 3 <!-- This page is derived from /server/standards/boilerplate.html --> 4 <!--#set var="TAGS" value="essays cultural evils" --> 5 <!--#set var="DISABLE_TOP_ADDENDUM" value="yes" --> 6 <title>FSF Statement in Response to Proposed Revised Final 7 Judgment in Microsoft v. United States 8 - GNU Project - Free Software Foundation</title> 9 <!--#include virtual="/philosophy/po/ms-doj-tunney.translist" --> 10 <!--#include virtual="/server/banner.html" --> 11 <!--#include virtual="/philosophy/ph-breadcrumb.html" --> 12 <!--GNUN: OUT-OF-DATE NOTICE--> 13 <!--#include virtual="/server/top-addendum.html" --> 14 <div class="article reduced-width"> 15 <h2>FSF Statement in Response to Proposed Revised Final Judgment 16 in Microsoft v. United States</h2> 17 <div class="thin"></div> 18 19 <p>January 28, 2002</p> 20 21 <address>Renata B. Hesse<br /> 22 Antitrust Division<br /> 23 U.S. Department of Justice<br /> 24 601 D Street NW<br /> 25 Suite 1200<br /> 26 Washington, DC 20530-0001</address> 27 28 <p>Dear Ms Hesse,</p> 29 30 <p>I am Professor of Law at Columbia University Law School in New 31 York, and General Counsel (<i>pro bono publico</i>) of the Free 32 Software Foundation, a non-profit §501(c)(3) corporation 33 organized under the laws of the Commonwealth of Massachusetts, with 34 its headquarters in Boston. I make this statement under the 35 provisions of 15 U.S.C. § 16(d) concerning the Proposed Revised 36 Final Judgment (hereinafter “the Settlement”) 37 in <i>United States v. Microsoft Corp</i>.</p> 38 39 <p>The remedies sought to be effected in the Settlement are, in 40 their broad outline, appropriate and reasonable measures for the 41 abatement of the illegal conduct proven by the United States at 42 trial. The goal of such remedies is to require that Defendant 43 affirmatively assist the restoration of competition in the market in 44 which the Defendant has been shown to have illegally maintained a 45 monopoly in violation of 15 U.S.C. §2. The remedies embodied in 46 the Settlement would substantially achieve that goal, appropriately 47 furthering the Government's pursuit of the public interest, if the 48 Settlement were amended to rectify certain details one-sidedly 49 favorable to the Defendant's goal of continuing its illegal 50 monopoly.</p> 51 52 <p>Defendant—in the interest of continuing unabated its 53 illegal monopoly—has artfully drafted certain clauses of the 54 Settlement so as to hobble potential competition, giving the 55 appearance of affirmatively assisting to undo its wrong, but 56 covertly assisting instead in its continuance.</p> 57 58 <p>The District Court found that the Defendant had illegally 59 maintained a monopoly in the market for Intel-compatible PC 60 operating systems. (Findings of Fact, November 19, 1999, ¶19.) 61 The mechanism of that monopolization, the court found, was the 62 attempt to establish exclusive control of “application program 63 interfaces” (“APIs”) to which applications 64 developers resort for operating system services, so as to prevent 65 the possibility of “cross-platform” development 66 threatening Defendant's operating systems monopoly. (Findings of 67 Fact, ¶80 and <i>passim</i>.)</p> 68 69 <p>The Settlement accordingly makes appropriate provision to 70 require Microsoft to provide access to full and complete 71 technical information about its APIs on non-discriminatory terms, 72 so as to prevent Defendant's prior conduct in erecting artificial 73 and illegal barriers to entry to the monopolized market.</p> 74 75 <p>But the precise terms of the Settlement create a series of 76 artful technical loopholes vitiating the primary intention.</p> 77 78 <p>Section III(D) provides that:</p> 79 80 <blockquote> 81 <p> 82 Starting at the earlier of the release of Service Pack 1 for 83 Windows XP or 12 months after the submission of this Final 84 Judgment to the Court, Microsoft shall disclose to ISVs, IHVs, 85 IAPs, ICPs, and OEMs, for the sole purpose of interoperating with 86 a Windows Operating System Product, via the Microsoft Developer 87 Network (“MSDN”) or similar mechanisms, the APIs and 88 related Documentation that are used by Microsoft Middleware to 89 interoperate with a Windows Operating System Product. (emphasis 90 added) 91 </p> 92 </blockquote> 93 94 <p>The “sole purpose” requirement means that Defendant 95 does not have to make any such API information available to 96 developers of software whose purpose it is to make competing 97 Intel-compatible PC operating systems. Only those who make programs 98 that interoperate with Windows Operating Systems Products may 99 receive such information. Under § III(I)(3), an applications 100 developer who has received licensed information concerning 101 Defendant's APIs could be prohibiting from sharing that information 102 with a maker of a competing Intel-compatible PC operating system, 103 for the purpose of interoperating with that competing product. Under 104 §III(I)(2), if a potential competitor in the market for 105 Intel-compatible PC operating systems also makes applications 106 products, it can even be prohibited from using licensed information 107 it receives in order to make those applications interoperate with 108 Defendant's products also interoperate with its own competing 109 operating system. 110 <span class="gnun-split"></span>What should be a provision requiring Defendant to 111 share information with potential competitors in the monopolized 112 market turns out, after Defendant's careful manipulation, to be a 113 provision for sharing information “solely” with people 114 other than competitors in the monopolized market. The same language 115 has been inserted into §III(E), thus similarly perverting the 116 intention of the Settlement with respect to Communications 117 Protocols.</p> 118 119 <p>Defendant has not merely engaged in this undertaking with a 120 goal to the exclusion of potential future competitors from the 121 monopolized market. In the teeth of the evidence, long after 122 having been proved to have behaved with exaggerated contempt for 123 the antitrust laws, Defendant is attempting in the very Judgment 124 delivered against it to exclude from the market its most vigorous 125 current competitor.</p> 126 127 <p>Defendant's most significant present challenger in the 128 Intel-compatible PC operating systems market is the collection of 129 “free software,” which is free in the sense of freedom, 130 not necessarily in price: thousands of programs written 131 collaboratively by individuals and organizations throughout the 132 world, and made available under license terms that allow everyone to 133 freely use, copy, modify and redistribute all the program code. That 134 free software, most of it licensed under the terms of the Free 135 Software Foundation's GNU General Public License (“the 136 GPL”) represents both an operating system, known as GNU, and 137 an enormous corpus of applications programs that can run on almost 138 all existing architectures of digital computers, including 139 Intel-compatible PCs. 140 <span class="gnun-split"></span>Through one such free software component, an 141 operating system “kernel” called Linux, written by 142 thousands of individuals and distributed under the GPL, the GNU 143 operating system can execute on Intel-compatible PC's, and by 144 combining Linux with other free software, GNU can perform all the 145 functions performed by Windows. Non-Microsoft Middleware can execute 146 on Intel-compatible PCs equipped with components of GNU and Linux. 147 Intel-compatible PCs so equipped currently account for more than 30% 148 of the installed server base in the United States, according to 149 independent industry obsevers.</p> 150 151 <p>The District Court found that “by itself, Linux's 152 open-source development model shows no signs of liberating that 153 operating system from the cycle of consumer preferences and 154 developer incentives that, when fueled by Windows' enormous 155 reservoir of applications, prevents non-Microsoft operating systems 156 from competing.” (Findings of Fact, November 5, 1999, 157 ¶50.) (referring, confusingly, to the combination of GNU, 158 Linux, and other programs simply as “Linux.”) The 159 District Court correctly found that in order to compete effectively 160 with Defendant in the desktop operating systems market for 161 Intel-compatible PCs, systems equipped with the free software 162 operating system should be able to interoperate with “the 163 enormous reservoir” of Windows applications.</p> 164 165 <p>There is no inherent barrier to such interoperation, only an 166 artificial barrier illegally erected by Defendant. If Defendant were 167 required to release information concerning its APIs to the 168 developers of free software, GNU, Linux, the X windowing system, the 169 WINE Windows emulator, and other relevant free software could 170 interoperate directly with all applications that have been developed 171 for Windows. Anyone could execute Windows applications programs 172 bought from any developer on Intel-compatible PC's equipped with the 173 competing free software operating system. And because, as the 174 District Court found, the cost structure of free software is very 175 much lower than Defendant's, the competing operating system product 176 is and would continue to be available at nominal prices. (Findings 177 of Fact, November 5, 1999, ¶ 50.)</p> 178 179 <p>That would be too effective a form of competition, from the 180 Defendant's point of view. For this reason, Defendant has included 181 in the Settlement the terms that exclude from API documentation 182 precisely those to whom it would be most logically addressed: 183 potential competitors seeking access to the monopolized market. If 184 the Settlement were enforced according to its intention, the result 185 would be immediate and vigorous competition between Defendant and 186 the parties against whom, the District Court found, Defendant was 187 illegally maintaining a barrier. The Settlement should be amended to 188 level that barrier, which the current language inserted by Defendant 189 artfully maintains. The language of §§III(D) and III(E) 190 should be amended to require Defendant to release timely and 191 accurate API information to all parties seeking to interoperate 192 programs with either Windows Operating System Products or 193 applications written to interoperate with Windows Operating System 194 Products.</p> 195 196 <p>For the same reason, Defendant's attempt to continue denying the 197 free software development community access to its APIs through the 198 imposition of royalty requirements, in §III(I)(1), should be 199 removed. As the District Court recognized, free software development 200 means that everyone in the world has access, without payment of 201 royalties or prohibition of redistribution, to the “source 202 code” of the software. All APIs and other interfaces are fully 203 available at all times to anyone who wants to interoperate with the 204 existing programs. This, and the ability to reuse existing program 205 code in new programs without payment of royalties or license fees, 206 permits vast numbers of interoperable, high-quality programs to be 207 written by a mixture of volunteers and professional project 208 developers for free distribution. 209 <span class="gnun-split"></span>By authorizing Defendant to engage 210 in non-reciprocity by charging royalties for the same information 211 about its programs, thus purposefully ousting volunteer developers, 212 and by prohibiting “sublicensing,” thus precluding 213 profit-making developers from seeking interoperability with 214 volunteers, the Settlement is craftily perverted into a mechanism 215 whereby Defendant can continue to withhold API information so as to 216 preclude the operations of potential competitors. The Settlement 217 should be modified so that §III(I)(1) requires reciprocity, by 218 precluding the imposition of royalties on developers who make their 219 own APIs fully available without payment of royalties or license 220 fees, and so that §III(I)(3) precludes limitation on 221 sublicensing, and requires Defendant to release API information on 222 terms reciprocal to those on which competitors make their own API 223 information available.</p> 224 225 <p>In one additional provision Defendant has attempted to subvert 226 the intention of the Settlement in order to preclude effective 227 competition by the Intel-compatible free software operating 228 system. Under § III(J)(1), Defendant may refuse to disclose 229 “portions of APIs or Documentation or portions or layers of 230 Communications Protocols the disclosure of which would compromise 231 the security of anti-piracy, anti-virus, software licensing, digital 232 rights management, encryption or authentication systems, including 233 without limitation, keys, authorization tokens or enforcement 234 criteria.” This provision is so indefinite that Defendant can 235 be expected to argue that all APIs and Communications Protocols 236 connected with the security and authentication aspects of electronic 237 commerce (including especially “without limitation” keys 238 and authorization tokens, which are the basic building blocks of all 239 electronic commerce systems) can be kept secret. 240 <span class="gnun-split"></span>At present, all 241 such protocols and APIs are public, which is appropriate 242 because—as computer security experts would testify if, as it 243 should, the District Court seeks evidentiary supplementation under 244 15 U.S.C. 16(f)(1)—security is not attained in the computer 245 communications field by the use of secret protocols, but rather by 246 the use of scientifically-refereed and fully public protocols, whose 247 security has been tested by full exposure in the scientific and 248 engineering communities. 249 <span class="gnun-split"></span>If this provision were enforced as 250 currently drafted, Defendant could implement new private protocols, 251 extending or replacing the existing public protocols of electronic 252 commerce, and then use its monopoly position to exclude the free 253 software operating system from use of that de facto industry 254 standard embodied in its new unpublicized APIs and Protocols. 255 Defendant then goes further in § III(J)(2), according to itself 256 the right to establish criteria of “business viability” 257 without which it may deny access to APIs. Considering that its 258 primary competition results from a development community led by 259 non-profit organizations and relying heavily on non-commercial and 260 volunteer developers, one can only conclude that Defendant is once 261 again seeking the appearance of cooperation with the rule of law, 262 while preparing by chicane to deny its injured competitors their 263 just remedy.</p> 264 265 <p>The Free Software Foundation not only authors and distributes 266 the GNU General Public License, and in other ways facilitates the 267 making of free software by others, it also manufactures and 268 distributes free software products of its own, particularly the 269 GNU operating system, and sells compilations of its own and 270 others' free software. The Foundation sustains specific injury 271 from the violations set forth in the complaint that are not 272 remedied by (and indeed are specifically excluded from) the 273 Settlement. The Foundation and the other free software developers 274 with whom it acts are the single most significant competitor to 275 the Defendant in the monopolized market, and the adoption of the 276 Settlement as drafted, with its terms so carefully designed by 277 Defendant to preclude its effective competition, would be a 278 travesty. We urge that the Settlement be amended as we have 279 described.</p> 280 281 <p>Very truly yours,<br /> 282 Eben Moglen</p> 283 </div> 284 285 </div><!-- for id="content", starts in the include above --> 286 <!--#include virtual="/server/footer.html" --> 287 <div id="footer" role="contentinfo"> 288 <div class="unprintable"> 289 290 <p>Please send general FSF & GNU inquiries to 291 <a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. 292 There are also <a href="/contact/">other ways to contact</a> 293 the FSF. 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