From: | Eben Moglen |
To: | Microsoft ATR |
Date: | 1/28/02 7:53am |
Subject: | Microsoft Settlement |
Please find attached a filing under 15 U.S.C. Section 16 in relation to the above matter.
Very truly yours.
Eben Moglen Professor of Law | voice: 212-854-8382 fax: 212-854-7946 moglen@ |
Columbia Law School, 435 West 116th Street, NYC 10027 columbia.edu
General Counsel, Free Software Foundation http://moglen.law.columbia.edu |
Columbia University in the City of New York
SCHOOL OF LAW
Eben Moglen
Professor of Law
http://moglen.law.columbia.edu
|
New York, N.Y. 10027
435 West 116th Street
212-854-8382
Fax: 212-854-7946
moglen@columbia.edu
January 27, 2002
|
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-0001
Dear Ms Hesse,
I am Professor of Law at Columbia
University Law School in New York, and General Counsel (pro bono
publico) 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 United States v. Microsoft
Corp.
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.
Defendantin the interest of continuing unabated
its illegal monopolyhas 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.
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 passim.)
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.
But the precise terms of the Settlement create a series
of artful technical loopholes vitiating the primary intention.
Section III(D) provides that:
- 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)
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. 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.
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.
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. 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
observers.
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.
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.)
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.
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. 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.
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. At present, all
such protocols and APIs are public, which is appropriate becauseas
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. 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 with it may deny access to APIs. Considering
that its primary competition results from a development community led
by non-pro.t 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.
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.
| Very truly yours,
Eben Moglen |
|