Scalio, Inc.
Tel: (425)889-8553
Fax: (425)889-9303
6119 114th AVE NE
Kirkland, WA 98033
FAX COVER SHEET
Date:__/__/__ | Pages, including cover page:____ |
To: |
Name: | Antitrust Division |
Office Number: | Microsoft Settlement |
Phone Number: | |
Fax Number: | 202-307-1454 |
From: |
Name: | Ramon Patin |
Office Number: | See above |
Phone Number: | ------------ |
Fax Number: | -------------- |
Note: | |
Ramon G. Pantin
From: | "Ramon G. Pantin" rgp@scalio.com |
To: | Microsoft.atr@usdoj.gov |
Cc: | rgp@veritas.com |
Sent: | Sunday, January 27, 2002 11:59 PM |
Attach: | commenls-040.html |
Subject: | Microsoft Settlement |
Dear Department of Justice representative,
Attached is an HTML document with my comments about the settlement proposed. I have included my background and contact information in that document.
Please feel free to contact me at:
rgp@scalio.com
or at home at:
425-889-1043
if you have trouble with the attached documents.
Sincerily,
Ramon G. Pantin
Introduction
My name is Ramon G. Pantin, I have been in involved in commercial Operating
System development since 1989. I have worked on the design and implementation
of a large variety of Operating Systems and system software (operating
system components) including chronologically:
- IBM's AIX 3.1, AIX 3.2, AIX 4.1 and AIX 5.x UNIX operating systems
for their RS/6000 product line (recently renamed eServer pSeries)
as a consultant.
- Tandem's NonStop UX UNIX operating system for fault tolerant systems
(as an employee of Tandem Computers).
- IBM's now defunct WorkPlace OS desktop operating system (successor
to their OS/2 product) ) (as a consultant and later as an employee).
- Microsoft's Windows NT4.0 and Windows 2000 (employed by Microsoft).
- ICCOS (a now defunct operating system) (employed at TagoSoft, Inc.)
- FreeBSD UNIX operating system (at TagoSoft, Inc and consulting for
Shawn Systems, Inc).
- SUN's Network Filesystem V3 for Windows NT (as a consultant)
- SUN's PC/SKIP product for Windows NT (as a consultant)
- Impactdata/Megadrive/Data Direct Networks CDNA shared storage SAN
file system (as a consultant and later as an employee)
- At Scalio, Inc developping storage management software for both
Windows 2000 and UNIX systems.
- IBM's AIX 5.x UNIX operating systems for their RS/6000 product line
(recently renamed eServer pSeries) as a consultant to Veritas Software
making changes to AIX as part of an IBM/Veritas relationship.
I have also taught operating systems design classes at Universidad Simon
Bolivar (Venezuela) in 1989 and professional system software classes,
both for UNIX and Windows NT.
I consider myself eminently well versed as a software enginner with 12
years of hands on operating system design and development.
The issues herein are of great importance to me and the industry that
I am a participant of.
I appreciate the opportunity to comment about the proposed settlement.
Below is a long list of comments. Each comment's name is of the
form "Comment X.Y" where X is the major section of the proposed settlement
within which the commented terms are discussed, and Y is simply a sequential
number of the comments that I have written and it is actually independent
of the acutal comment numbering within the proposed settlement itself.
Each comment includes the appropriate reference to text in question
within the proposed settlement document.
I am available for comment and clarification in any and all issues hereing,
preferrably thorugh email, please contact me at:
Ramon G. Pantin
rgp@scalio.com
or at:
Ramon G. Pantin
6119 114th AVE NE
Kirkland WA 98033
Sincerily,
Ramon Pantin
January 26th, 2002
Comment III.1
Section III.A reads:
"A. Microsoft shall not retaliate against an OEM by altering Microsoft's
commercial relations with that OEM, or by withholding newly introduced
forms of non-monetary Consideration (including but not limited to
new versions of existing forms of non-monetary Consideration) from
that OEM, because it is known to Microsoft that the OEM is or is contemplating:"
There are 3 problems with this section:
- It allows Microsoft to withhold existing forms of non-monetary
Consideration, because it only prevents witholding newly introduced
forms;
- Monetary considerations are explicitly excluded, they shouldn't
be excluded.
- Microsoft knowledge is irrelevant and hard to establish,
that text only contributes to the ambiguity of this section.
Section III.A should be not be constrained or qualified in these ways.
It should be replaced with this text:
A. Microsoft shall not retaliate against an OEM by altering Microsoft's
commercial relations with that OEM, or by withholding any forms of
Consideration from that OEM, because the OEM is or is contemplating:"
Comment III.2
Section III.A.1 reads:
"1. developing, distributing, promoting,
using, selling, or licensing any software that competes with Microsoft
Platform Software or any product or service that distributes or promotes
any Non-Microsoft Middleware;"
There are 2 problems in this section:
- Microsoft in the past has retaliated against OEMs that market products
that compete against Microsoft products, not just Microsoft Platform
Software. For example, Microsoft retaliated against IBM when IBM decided
to pre-install its SmartSuite product (a product that competes directly
with Microsoft Office) on its PCs, see Findings of Fact, paragraph
122 which reads: "... Then, on July 20, 1995, just three days after
IBM announced its intention to pre-install SmartSuite on its PCs,
a Microsoft executive informed his counterpart at the IBM PC Company
that Microsoft was terminating further negotiations with IBM for a
license to Windows 95. Microsoft also refused to release to
the PC Company the Windows 95 “golden master” code.
The PC Company needed the code for its product planning and development,
and IBM executives knew that Microsoft had released it to IBM’s
OEM competitors on July 17. ..."
- The words "any software that competes" allow for retaliation
against the development, distribution, promotion, use, sell, or licensing
of any technology that competes against Microsoft technologies.
Examples of such technologies, include but are not limited to: technical
standards, open or proprietary protocols, services, hardware products,
etc.
Section III.A1 should be not be constrained or qualified in these ways.
The existing Section III.A.1 should be left as part of the text and
a new paragraph should be added to the list. Thus Section III.A.4 (a
new paragraph) should be:
"4. developing, distributing, promoting,
using, selling, or licensing any technology or product that competes
with any Microsoft product, technology or service;"
Comment III.3
Section III.A.2 reads:
"2. shipping a Personal Computer that (a)
includes both a Windows Operating System Product and a non-Microsoft
Operating System, or (b) will boot with more than one Operating System;
or"
Microsoft currently forbids OEMs, or it imposes Market Development Agreement
penalities or it withholds Consideration from OEMs when they offer for
sell Personal Computers without a Microsoft Operating System. Because
of the earlier consent decree imposed on Microsoft, instead of requiring
that every Personal Computer include a Microsoft Operatin System, Microsoft
requires that for each model of Personal Computer offered by the OEM that
each Personal Computer of that model be sold with a Microsoft Operating
System. If this isn't done, Market Development Agreement penalties or
Considerations are withheld from the OEM. Theoretically, the OEM is free
to offer a model of Personal Computers for which it expects to sell such
a high fraction of them without a Microsoft Operatin System, that offering
them in that way doesn't cause harm or competitive disadvantage to the
OEM. In reality, node of the models of Personal Computers are expected
to sell in any large enough percentage without a Microsoft Operating System,
thus the OEM ends up paying for a Microsoft Operating System for each
Personal Computer for each model that it offers, thus it is forced to
always pay for a Microsoft Operating System.
Microsoft, additionally requires that the end user of the Personal Computer
accept a license agreement, and the it indicates that if the license agreement
is not accepted, that the Microsoft Operating System product should not
be used and that the Personal Computer manufacturer should be contacted
for a refund.
Because of Microsoft per unit per model royalty imposition on the OEM,
the OEM has no incentive to provide such a refund to the end user and
these requests are largely ignored by the OEMs thus resulting in end users
that desire to purchase a Personal Computer to pay for a software licesnse
for a Microsoft Operating System, even if they never use such a software.
Given Microsoft's creativity in constraining OEMs in their business decisions,
a broad based term should also be included. For example, Microsoft
could technologically constraint the OEM from supporting non-Microsoft
Operating Systems, for example by Microsoft imposing on the OEM technological
standards that must be used in the Personal Computer design and because
of intellectual property reasons the use of these standards prevent non-Microsoft
Operating Systems from functioning on the Personal Computer (for example
because Microsoft might have patents on the technology).
Section III.A.2 should be augmented with these subclauses to allow consumer
to purchase Personal Computers without a Microsoft Operating System:
"2. shipping a Personal Computer that (a)
includes both a Windows Operating System Product and a non-Microsoft
Operating System, or (b) will boot with more than one Operating System,
or (c) does not include any Operating System of any kind, or (d) includes
a Windows Operating System Product and provides for the removal of the Windows
Operating System Product during the startup of the Personal Computer,
as long as the Windows Operating System has not been used by the consumer,
and allows for a refund to be issued to the comsumer for the price of
the operating system, or (e) in any way supports or provides non-Microsoft
Operating Systems; or"
Comment III.4
Section III.A by virtue of enumerating the activities that the OEM "is
or is contemplating" allows Microsoft to retaliate for any activities
not explicitly enumerated in this list (III.A.1, III.A.2, III.A.3, etc).
A broad term should be added that prevents Microsoft from any other cause
for retaliation. Section III.A.5 should be added (Section III.A.4 was
proposed to be added above in Comment III.2):
5. engaging in any lawful activity by any means
by itself or in cooperation with any party.
Comment III.5
Section III.A in the fith paragraph (the paragraph under III.A.3) reads
in its last two sentences:
"Microsoft shall not terminate a Covered OEM’s license
for a Windows Operating System Product without having first given the
Covered OEM written notice of the reasons for the proposed termination
and not less than thirty days’ opportunity to cure. Notwithstanding
the foregoing, Microsoft shall have no obligation to provide such a
termination notice and opportunity to cure to any Covered OEM that has
received two or more such notices during the term of its Windows Operating
System Product license."
There are three problems with these sentences:
- The time period of thirty days for cure is extremely short and would
lead to unnecessary hardship on the OEM because of product distribution
considerations (channel, distribution, resellers) that might require
a constly product recall to be able to cure in thirty days. A
period of at least 90 days is more appropriate. It is interesting
to notice how terminating a Covered OEMs license and thus putting
the OEM immediately out of the Personal Computer business is codified
into this consent decree, when any restraint on Microsoft's illegal
monopolistic behaviour requires (so far) years of litigation and continued
complaints about how "draconian" such measures are.
- The non-obligation to provide a termination notice can be used by
Microsoft as a means of retaliation by not enforcing contractual terms
on some OEMs while enforcing them on others, thus easily allowing
for just two such notices to cure to be used as retaliatory means.
The number of notices should be a function of time, for example 2
notices per year .
- Microsoft should be required to enforce contractual terms in a non-discriminatory
way across all OEMs, it should not be allowed to selectively enforce
contractuals terms because it would provide an easy retaliatory tool
against the OEMs. Additionally, Microsoft must show that if
it makes efforts to enforce certain terms, then it must enforce all
terms across all OEM with equal effort, dilligence and strength.
- The notion of termination notices, per se, is problematic, because
termination notices might not even correspond to actual OEM behaviour
but to misunderstanding between the parties or Microsoft's desires
for retaliation against the OEM. Any such termination notice
should be submitted to the Technical Committee for technical consideration,
the Microsoft Internal Compliance Officer, and to all the Plaintiffs;
together with detailed documentation of the non-discriminatotry enforcement
by Microsoft of these and any other contractual terms across all Covered
OEMs. This communication is important because it ensures that the
antitrues enforcement parties are involved from the start when any
such notice is given.
Comment III.6
Section III.A, last paragraph reads:
"Nothing in this provision shall prohibit Microsoft from providing
Consideration to any OEM with respect to any Microsoft product or service
where that Consideration is commensurate with the absolute level or
amount of that OEM’s development, distribution, promotion, or
licensing of that Microsoft product or service."
These issues should be addressed:
- Such Consideration should be offered to all Covered OEMs in a non-discriminatory
basis.
- The Consideration should be objectively measured according to established
accounting practices.
- The Technical Committee, the Microsoft Internal Compliance Officer,
and all Plaintiffs should be informed and provided a copy of any and
all such agreements and be allowed to requests additional documentation
and conduct interviews related to the agreement.
Comment III.7
Section III.B, first paragraph reads:
"B. Microsoft’s provision of Windows
Operating System Products to Covered OEMs shall be pursuant to uniform
license agreements with uniform terms and conditions. Without
limiting the foregoing, Microsoft shall charge each Covered OEM the
applicable royalty for Windows Operating System Products as set forth
on a schedule, to be established by Microsoft and published on a web
site accessible to the Plaintiffs and all Covered OEMs, that provides
for uniform royalties for Windows Operating System Products, except
that:"
Issues:
- In the first sentence, where it reads "... with uniform terms and
conditions." it should read: ".... with uniform terms and conditions
and Considerations." Considerations established outside or after the
license agreement has been entered should be communicated to the OEMs
in a uniform manner. All agreements and Considerations should be provided
to the Technical Committe, the Microsoft Internal Compliance Officer,
and all Plaintiffs and these parties must be allowed to requests additional
documentation and conduct interviews related to the agreements and
Considerations.
- Microsoft in the past has discriminated against OEMs and other Personal
Computer manufacturers (for example Apple) by threatening to not make
Microsoft products available on those manufacturers computers, for
example Microsoft Office cancellation for Apple's MacIntosh systems.
Additionally, Microsoft has used the OEM prices of these non-Operating
System products as a means to discriminate against OEMs. The prices
and the offering of any Microsoft product to any Covered OEM for bundling
with a Personal Computer should be non-discriminatory and subject
to uniform license agreements.
- Volume discounts of groups of Microsoft Operating System Products
and Microsoft non-Operating System Products should not be allowed,
because it might lead to exclusion from the market of products that
competed against the Microsoft non-Operating System Products. For
example, group discounts for a bundle of Microsoft Windows XP and
Microsoft Office; or Microsoft Windows XP and Microsoft Word (or Microsoft
Excell, etc); or Microsoft Windows XP and Microsoft Works; must
not be allowed.
Comment III.8
Section III.C reads:
"C. Microsoft shall not restrict by agreement
any OEM licensee from exercising any of the following options or alternatives:"
This should read:
C. Microsoft shall not restrict by agreement
or any other means any OEM licensee from exercising any of the following
options or alternatives:
For example, Microsoft could, through verbal or written communication,
or through the quality of service that it provides the OEM restrict the
OEM, or threaten the OEM from exercising the alternatives. Microsoft has
in the past retaliated against OEMs, particularly IBM and Gateway, as
is described in detail in the Findings of Fact through means other than
agreements. For example by witholding IBM participation in marketting
programs, or threatening Gateway with sofware audits.
Comment III.9
Section III.C.1 and others enumerate:
"icons, shortcuts, or menu entries"
this list should be:
icons, shortcuts, folders, appliactions, explorer hierarchies
or menu entries
Comment III.10
Section III.C.1 ends in "with respect to non-Microsoft and Microsoft products."
This should be changed to read: ""with respect to non-Microsoft and Microsoft
products or technologies that offer similar types of functionality." For
example, the technology might be provided by a network service and not
by a product installed in the Personal Computer, how the technology is
provided should not be a reason for allowing Microsoft to retaliate or
discriminate.
Comment III.11
In general, section III.C.1 and throughout the document, it is assumed
that the only way to allow applications or software facilities to be used
is through "icons, shortcuts, or menu entries", when in reality, applications/middleware
can also be activated by associating it with particular types of data,
and when such types of data are accessed, the application associated with
it is activated. For example, when a file with a given extension
is accessed, or when a URL is accessed over the internet, the type of
the data is determined and the application associated with that type of
data is activated. It is vital that such associations be allowed
in a non-discriminatory basis between Microsoft and non-Microsoft technologies.
For example, when a Internet audio URL is accessed, the media player
associated with the data type is invoked to cause the audio to be decoded
and played. It is not unsusual for multiple competing technologies, such
as Microsoft Media Player, Real Networks and Apple's Quicktime media players
to be capable of supporting the same data types, thus the preservation
of the setting chosen by the user is important. Discrimination in this
area has occurred in the past against both Apple's Quicktime and Real
Network's Real Player.
The document should be updated throughout to take into account this form
of application activation through data type and file name extension associations.
Comment III.12
Section III.C.2 reads:
"2. Distributing or promoting Non-Microsoft
Middleware by installing and displaying on the desktop shortcuts of
any size or shape so long as such shortcuts do not impair the functionality
of the user interface."
The term shortcuts should be replaced with icons, because
many types of items can be shown on the desktop and these are not limited
to shortcuts. For example, applications, files, folders, etc.
Comment III.13
Section III.C.3 reads:
"3. Launching automatically, at the conclusion
of the initial boot sequence or subsequent boot sequences, or upon connections
to or disconnections from the Internet, any Non-Microsoft Middleware
if a Microsoft Middleware Product that provides similar functionality
would otherwise be launched automatically at that time, provided that
any such Non-Microsoft Middleware displays on the desktop no user interface
or a user interface of similar size and shape to the user interface
displayed by the corresponding Microsoft Middleware Product."
Issues:
- The qualification: "if a Microsoft Middleware Product that provides
similar functionality would otherwise be launched automatically at
that time" is simply a form of restraint of trade. Microsoft usually
doesn't lead in innovation, it follows, copies and bundles other's
innovations into its products. It is unreasonable to require that
Microsoft launch some software at a particular time to allow others
to launch their software at that time. Usually some third party or
OEM will developped these concepts and only later (much later sometimes)
Microsoft will copy the concepts and include them in their versions
of such functionality. The qualification should be removed.
- The second qualification is also very unresonable, here Microsoft
again thinks that it can dictate or retrain through its actions (or
lack thereof) the innovations of others. The qualification reads:
"provided that any such Non-Microsoft Middleware displays on the desktop
no user interface or a user interface of similar size and shape to
the user interface displayed by the corresponding Microsoft Middleware
Product. " Again, it is ludicrous that competing ISVs or OEMs
be reatrained to only mimic Microsoft's actions when usually innovation
happens the other way around. This qualification should be removed.
Why should microsoft care about the size of the user
interface? If the OEM creates a user interface that is too small,
or narrow, or large, it doesn't cause any harm to Microsoft, only
to the OEM in user dissatisfaction and support costs (none of which
are Microsoft's concern given that it doesn't bare any of those costs,
and given Microsoft's treatment of Hewlett Packard with respect to
startup sequnce shells, it has shown that it doesn't care about those
OEM costs).
- The qualification "if a Microsoft Middleware Product that provides
similar functionality" also allows for Microsoft restraint of other's
innovations, the definition of Microsoft Middleware Product is particularly
weak and full of escape clauses. The qualification should not be present
at all.
- The time qualification and enumeration of the circumstances and
times under which launching can occur "at the conclusion of the initial
boot sequence or subsequent boot sequences, or upon connections to
or disconnections from the Internet" should also be removed. There
are many reasons why lounching might be desireable at other times.
- Launching of should not be restricted to "Non-Microsoft Middleware",
any software should be allowed to be launched.
Section III.C.3 should read:
3. Launching automatically, at the conclusion
of the initial boot sequence or subsequent boot sequences, or upon connections
to or disconnections from the Internet, or at any other time, any Non-Microsoft
software is allowed without this being subject to any restraint from
Microsoft. Mechanisms (APIs, Protocols, Facilities, etc) present in
a Microsoft Operating System that aids launching of Microsoft software
at particular times should be documented and allowed to be accessed
by non-Microsoft software without restraint.
It should be noted that the original Section III.C.3 precludes the implementation
of IAP sign up sequences, OEM shells, end user tutorials that are desired
to be lounched at the initial and subsequent boot sequences. For example
the OEM might present an IAP sign up sequence until such a time when the
user as made such a selection or when the user as indicated that it doesn't
want to asked again in subsequent sign up sequences. The reason the Section
III.C.3 precludes even the implementation in the initial boot sequence
is because Microsoft can remove their own facilities from startup or from
displaying a user interface, thus forcing the OEM to remove their facilities.
Freedom of innovation and choice by the OEMs cannot be at the mercy of
Microsoft's actions. For example, Microsoft might move such facilities
to the second boot sequence and it might require that the system reboot
after an initial boot sequence process, the OEMs would then not have the
freedom to provide their facilities in the second boot sequence.
Comment III.14
Section III.C.4 reads:
"4. Offering users the option of launching
other Operating Systems from the Basic Input/Output System or a non-Microsoft
boot-loader or similar program that launches prior to the start of the
Windows Operating System Product."
This section should be augmented in this way:
4. Offering users the option of (a) launching
other Operating Systems from the Basic Input/Output System; or (b) launching
other Operating Systems from a non-Microsoft boot-loader or similar
program that launches prior to the start of the Windows Operating System
Product.; or (c) choosing to make a non-Microsoft boot-loader the default
boot loader in the system; or (d) choosing to allow the end user to
interactively direct the Basic Input/Output System or a non-Microsoft
boot-loader or any other facility to remove a Microsoft Windows Operating
System and to provide the Personal Computer owner to receive a refund
for the cost of the Microsoft Windows Operating System from the OEM;
or (e) to select a default Operating System that is a non-Microsoft
Operating System, for example by allowing the default Operating System
to start without user intervention after a timeout period; or (f) any
other form of restraint that might cause an OEM to not preload non-Microsoft
Operating systems in their Personal Computers (for example by having
the Microsoft Operating System corrupt the disk occupied used by such
non-Microsoft Operating Systems, or from denying supprt to OEMs for
such product configurations, etc)..
Given the nature of existing restraints by Microsoft in this area, these
additional clauses allow for less restraint by Microsoft on the OEMs actions.
Comment III.15
Section III.D reads:
"D. 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. In the case of a new major version of
Microsoft Middleware, the disclosures required by this Section III.D
shall occur no later than the last major beta test release of that Microsoft
Middleware. In the case of a new version of a Windows Operating
System Product, the obligations imposed by this Section III.D shall
occur in a Timely Manner."
Issues:
- The text "via the Microsoft Developer Network (“MSDN”)
or similar mechanisms" allows Microsoft not to use the MSDN program
which is broadly available and non-discriminatory, and allows instead
for Microsoft to extract other agreements and conditions from the
interested parties. The intent should by "via the Microsoft Developer
Network (“MSDN”) or successor developer program (if the
MSDN program is discontinued or replaced by a new developer program,
but such a program should be equally broadly available and equally
non-discriminatory as the MSDN program was on the earliest date the
proposed consent decree was filled with the Court by Microsoft and
the Plaintiffs)."
- The text "APIs and related Documentation" should be extended to
include "APIs, related Documentation, Protocols, File Formats, Data
Formats, Certification/Validation Component Signatures, and any other
technological mechanism".
- The text "that are used by Microsoft Middleware to interoperate
with a Windows Operating System Product ", given the loose definition
and the escape clauses that Microsoft can invoke in that definition,
and given that Microsoft also markets a wide variety of non-Middleware
software and hardware, the text should be corrected to require full
disclosure of the use by these software and hardware products of Microsoft
Operating System facilities. The proposed text is shown below.
- The requirement that disclosure only occur in the case of a new
major version of Microsoft Middleware allows Microsoft an easy exit
from their documentation requirements. Microsoft has stated in fron
of the District Court (Judge Jackson) that a sandwich would be part
of the Operating System if they so dictated, clearly Microsoft cannot
be trusted to name a release major or non-major, because to Microsoft
it would be whatever they desire at such a time. Furthermore the mechanism
of Major and first Minor point release numbers is highly ambiguous
and maleable, certain Microsoft products don't even have a version
number (Windows XP, Microsot .Net). In any case, whether a product
release is major or minor should not be an excuse for non-diclosure,
a small bug fix release wouldn't have many changes on interface use,
so its documentation requirements would be proportional to the effort
spent in the release development. If this restriction is not removed,
facilities would remain undocumented, simply because Microsoft doesn't
use them initially in their so called major release but instead only
uses them initially in a minor release; or even more easily by making
every release a minor release. Microsoft has shown in the earlier
Consent Decree entered with the D.O.J. that it will take advantage
in any ambiguity.
The new section should thus read:
D. 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 successor developer program (if the MSDN
program is discontinued or replaced by a new developer program, but
such a program should be equally broadly available and equally non-discriminatory
as the MSDN program was on the earliest date the proposed consent decree
was filled with the Court by Microsoft and the Plaintiffs), the APIs,
related Documentation, Protocols, File Formats, Data Formats, Certification/Validation
Component Signatures (and Microsoft shall not restraint or deny such
signature facilities or enablements), and any other technological mechanism
that are used by Microsoft Middleware, Microsoft Application,
Microsoft Hardware Products, or by newly introduced Microsoft
Operating System features (that are similar to existing facilities available
from third parties in the market) to interoperate with a Windows Operating
System Product. In the case of a any new version of Microsoft
Middleware or Microsoft Operating Systems, or Microsoft Application,
the disclosures required by this Section III.D shall occur no later
than the last major beta test release of that Microsoft Middleware.
In the case of a new version of a Windows Operating System Product,
the obligations imposed by this Section III.D shall occur in a Timely
Manner.
Comment III.16
Section III.E should be augmented where it reads "on reasonable and non-discriminatory
terms" to read "on reasonable, non-discriminatory and non-royalty bearing
terms." The imposition of per unit royalties as a condition to grant access
to any Communication Protocol would allow Microsoft to exclude competitors
from the market.
Comment III.17
Section III.E reads:
"E. Starting nine months after the submission
of this proposed Final Judgment to the Court, Microsoft shall make available
for use by third parties, for the sole purpose of interoperating with
a Windows Operating System Product, on reasonable and non-discriminatory
terms (consistent with Section III.I), any Communications Protocol that
is, on or after the date this Final Judgment is submitted to the Court,
(i) implemented in a Windows Operating System Product installed on a
client computer, and (ii) used to interoperate natively (i.e., without
the addition of software code to the client operating system product)
with a Microsoft server operating system product."
There are many issues with this section:
- Communication Protocols can be used for communication between two
or more personal computers running a Windows Operating System Product
installed on client computers. For example a client computer can share
a disk drive so that its file are accessed to other client computers,
such functionality doesn't require a Microsoft server operating system
product. The ability to interoperate natively should not be restricted
to the Communication Protocols used to interoperate natively
with a Microsoft server operating system product, for example a competing
non-server client operating system might require to implement these
protocols to be competitive. For example, both Apple's MacOS X client
operating system and client versions of the GNU/Linux operating systems
contain incomplete implementations of the file sharing protocols used
by Windows Operating System ). Section III.E shall apply equally to
both client and server operating systems to allow them interoperate
natively with Windows Operating System Products installed on
client computers.
- To circumvent the provisions in Section III.E Microsoft could do
this in future (major or minor) releases of its Personal Computer
Operating System Products: (a) do not include software that implements
future revisions of a Communications Protocol with the Windows Operating
System Product installed on a client computer; and (b) request from
the Microsoft server operating system product the software that the
client requies at first boot, each boot, or at under other circumstances.
Thus Microsoft would have circumvented the requirements stated in
Section III.E because there would be "addition of software code to
the client operating system product" (which Section III.E.ii requires
that it be "without the addition of software code to the client operating
system product"). By Microsoft implementing a new protocol (which
it would not have trouble documenting to 3rd parties) that the client
computer's Windows Operating System Product would use to request these
addional software codes from a Microsoft server operating system product
the circumvention would have been achieved. Thus by removing
the existing components that implement existing Communications Protocols
all kinds of Communications Protocols would thus be allowed to remain
undocument in future releases of a Windows Operating System Product
by Microsoft, thus denying the purpose of allowing native interoperability
between other operating systems and Windows Operating System Products.
Microsoft, through privave key signin and public key signature validation,
Microsoft would be able to sign these software components to ensure
their origins (Microsoft) and that they have not ben tampered, thus
allowing every Communications Protocols to remain undocumented, including
security protocols, filesystem protocols, transaction management protocols,
etc.The intent of Section III.E is good because it is pro-competitive,
but the actual terms easily allow Microsoft to circumvent that intent.
Software is very maleable, terms used to describe it, such as: "without
the addition of software code" are easily circumvented, for example
by slicing the software and requiring thatthere be "addition of software
code", this can be done easily and transparently (i.e. without knowledge
by end user).
- The word "implemented" is also used to describe the software, and
can lead to arguments or circumvention from Microsof with respect
to meaning.
- The description of what is being made available is ambiguous. Instead
of "Microsoft shall make available ..., any Communications Protocol",
it should be stated clearly what is being made available. A description
of what should be made available is shown in the proposed revision
to Section III.E below.
Section III.E should be replaced with:
E. Starting nine months after the submission of this
proposed Final Judgment to the Court, Microsoft shall make available
for use by third parties, for the sole purpose of interoperating with
a Windows Operating System Product, on reasonable (without an up front
fee and royalty free) and non-discriminatory terms (consistent with
Section III.I), technical implementations for any Communications
Protocol that is, on or after the date this Final Judgment is submitted
to the Court, utilized by a Windows Operating System Product nstalled
on a client computer to interoperate with (i) a Microsoft server operating
system product, or (ii) a Windows Operating System Product. The means
through which any such Communications Protocol shall be made available
shall include:
(a) a non-fee based and non-royalty based patent license
to any and all patents required by an implementation of fully featured,
high performance, and interoperable client or server operating system
product components that implement the Communication Protocols in
question. The patent license can be limited to be for the sole purpose
of interoperating with Windows Operating System Products installed
on a client computers; and
(b) a non-fee based and non-royalty based license to implement the
Communications Protocol in client and server operating system product
components that are fully featured, high performance, and interoperable
with Windows Operating System Products installed on a client
computers. The protocol license can be limited to be for the sole
purpose of interoperating with Windows Operating System Products
installed on a client computers; and
(c) a technical discussion forum (mail list, newsgroup or web site)
through which Microsoft will provide in a non-discriminatory basis
non-fee based technical support to ISVs that require support related
to the Communications Protocol. Microsoft shall make its best efforts
to provide such technical support.
Microsoft shall provide subject to the Communication Protocol license
the Communications Protocol specifications which shall be:
(d) the precise and complete set of specifications of
the Communication Protocols (and their predecessors), such that
based on it a competent third party software developper would be
capable of implementing fully featured, high performance, and interoperable
operating system product components that implement the Communication
Protocols in question (without the need to perform any reverse engineering
of any kind); or
In the abscence of such a precise and complete set of specifications
as described in Section III.E.a (above), or at Microsoft's choosing
or by direction of the Technicall Committee, Microsoft shall provide
instead:
(e) any and all specifications that Microsoft has of
the Communication Protocols (and their predecessors); and the complete
source code and build procedures of all the relevant client side
components and implementations (for each Microsoft Windows
Operating System Product) of the Communications Protocol in a form
that these components can be compiled (i.e. translated from source
code form into binary form) and linked (translated from object form
into a binary executable form) by the third party to produce the
exact same binaries of the native components in the Windows
Operating System Product that implement the Communication
Protocols. The license under which these component's source codes
and build procedures would be provided to the third party would
be only for reference and use only within the third parties premises
for the sole purpose of implementing fully featured, high performance,
and interoperable operating system product components that implement
the Communications Protocol in question. No redistribution rights
of any kind (in binary or source form) are required to be given
to the third party.
Additionally:
(f) Microsoft shall continuously and proactively provide
updates to the third party such that the third party can continue
to implement fully featured, high performance, and interoperable
operating system product components that implement the Communication
Protocols in question as the corresponding Microsoft Windows Operating
System Products implement new patents, versions or features of the
Communications Protocol. These updates should be provided
irrespective of how major or minor is the Microsoft Windows Operating
System Product update that makes use of the Communications Protocol
changes or patents. Microsoft shall provide these through addendums:
(i) to the licenses described in Sections III.E.a and
III.E.b to cover new patents or protocol revisions or versions
as appropriate; and
(ii) the specifications and implementations described or provided
in Sections III.E.d and III.E.e as appropriate
Comment III.18
Section III.F.1.a reads:
"a. developing, using, distributing, promoting
or supporting any software that competes with Microsoft Platform Software
or any software that runs on any software that competes with Microsoft
Platform Software, or"
Microsoft has shown that it retaliates against OEMs when they support
non-Microsoft software in general, not just Microsoft Platform Software,
for example the retaliation against IBM because of IBM's intent to bundle
SmartSuite with their Personal Computers as can be seen in the Findings
of Fact.
Section III.F.1.a should be expanded to read:
a. developing, using, distributing, promoting
or supporting any software that competes with Microsoft Platform Software,
Microsoft Operating Systems, Microsoft Application Software, Microsoft
Hardware or any other Microsoft supported technologies or any software
that runs on any software that competes with Microsoft Platform Software,
Microsoft Operatin Systems, Microsoft Application Software, Microsoft
Hardware or any other Microsoft supported technologies; or
Comment III.19
Section III.F.2 reads:
"2. Microsoft shall not enter into any
agreement relating to a Windows Operating System Product that conditions
the grant of any Consideration on an ISV’s refraining from developing,
using, distributing, or promoting any software that competes with Microsoft
Platform Software or any software that runs on any software that competes
with Microsoft Platform Software, except that Microsoft may enter into
agreements that place limitations on an ISV’s development, use,
distribution or promotion of any such software if those limitations
are reasonably necessary to and of reasonable scope and duration in
relation to a bona fide contractual obligation of the ISV to use, distribute
or promote any Microsoft software or to develop software for, or in
conjunction with, Microsoft."
Issues:
- Again, Microsoft retaliates against OEMs (IBM) to product Microsoft
products other than its Operating Systems.
- Allowing Microsoft to enter into agreements that "place any limitations
on ISV's development, use, distribution or promotion of any such software"
is an open ended means under which Microsoft can cause ISV's to act
in manners that Microsoft desires. For example, Microsoft might extend
the MSDN agreements with limited sublicensing of Microsoft patent
pools and extract in exchange agreements from all ISVs in the market
to limit their development, use, distribution or promotion of any
other software. The litigation to ensure that those limitations are
not "reasonably necessary to and of reasonable scope" would probably
take another 4 years of litigation. The Plaintiffs must remember that
one of Microsoft's options at any time is to relly on the ambiguities
of these terms and use them to realize their means, given that it
has been shown that Microsoft has monopoly power int he x86 compatible
Personal Computer market its retaliatory means must be reduced as
much as possible.
Section III.F.2 should read:
2. Microsoft shall not enter into any agreement
relating to a Windows Operating System Product, Microsoft Application
Software, Microsoft Hardware or any other Microsoft supported technologies,
that conditions the grant of any Consideration on an ISV’s refraining
from developing, using, distributing, or promoting any software that
competes with Microsoft Platform Software, Microsoft Operatin Systems,
Microsoft Application Software, Microsoft Hardware or any other Microsoft
supported technologies or any software that runs on any software that
competes with Microsoft Platform Software. Microsoft may not enter into
any agreements that place limitations on an ISV’s development,
use, distribution or promotion of any such software for any reason.
Microsoft has more than enough resources to all the software development
that it requires, if it has to relly on outside parties to do software
development, it must do so without placing limitations.
Comment III.20
Section III.G.1 reads:
"G. Microsoft shall not enter into any
agreement with:
1. any IAP, ICP, ISV, IHV or OEM that grants Consideration
on the condition that such entity distributes, promotes, uses, or supports,
exclusively or in a fixed percentage, any Microsoft Platform Software,
except that Microsoft may enter into agreements in which such an entity
agrees to distribute, promote, use or support Microsoft Platform Software
in a fixed percentage whenever Microsoft in good faith obtains a representation
that it is commercially practicable for the entity to provide equal
or greater distribution, promotion, use or support for software that
competes with Microsoft Platform Software, or"
These are the issues:
- The text: "except that Microsoft may enter into agreements in which
such an entity agrees to distribute, promote, use or support Microsoft
Platform Software in a fixed percentage whenever Microsoft in good
faith obtains a representation that it is commercially practicable
for the entity to provide equal or greater distribution, promotion,
use or support for software that competes with Microsoft Platform
Software" allows Microsoft to extract agreements from these parties
under which at least, by assuring itself of a 50% distribution, promotion
or usage share it guarantees that no competitors technology can be
bradly available on a large fraction of Personal Computers so that
it can become a platform for cross-platform software. For example
by ensuring that 50% of new Personal Computers don't include such
software, Microsoft can ensure that such software doesn't obtain critical
mass as a platform.
- These kinds of allowances, given Microsoft's behavior, only serve
to codify Microsoft's right to extinguish competition. It codifies
the right and means through which Microsoft can cut other parties
"air supply".
- By restricting these terms to "Microsoft Platform Software" it allows
Microsoft to enter other kinds of agreements in which the means to
kill innovation and drive others off the market is by developping
non-Platform Software, for example by developping Applications, giving
them for free and forcing these parties to distribute them at 50%
usage share.
The whole exception should be removed and Section III.G.1should read:
G. Microsoft shall not enter into any agreement
with:
1. any IAP, ICP, ISV, IHV or OEM that grants Consideration
on the condition that such entity distributes, promotes, uses, or supports,
exclusively or in a fixed percentage, any Microsoft Platform Software,
Microsoft Operatin Systems, Microsoft Application Software, Microsoft
Hardware or any other Microsoft supported technologies, or
Furthermore, the agreement that Microsoft might enter might require that
the OEM doesn't distribute certain non-Microsoft Sofware without actually
requiring the distribution of Microsoft technologies. Thus a new clause
should be added, Section III.G.3:
3. any IAP, ICP, ISV, IHV or OEM that grants
Consideration on the condition that such entity refrains in any way
or percentage from distributing, promoting, using, or supporting, any
non-Microsoft software or technologies
Comment III.21
Section III.G.2 reads:
"G. Microsoft shall not enter into any
agreement with:
...
2. any IAP or ICP that grants placement on the desktop
or elsewhere in any Windows Operating System Product to that IAP or
ICP on the condition that the IAP or ICP refrain from distributing,
promoting or using any software that competes with Microsoft Middleware."
Again the restriction is too narrow with respect to Microsoft's other
means of distributing software, it should read:
2. any IAP or ICP that grants placement
on the desktop or elsewhere in any Windows Operating System Product
to that IAP or ICP on the condition that the IAP or ICP refrain from
distributing, promoting or using any software that competes with Microsoft
Middleware, Microsoft Platform Software, Microsoft Operatin Systems,
Microsoft Application Software, Microsoft Hardware or any other Microsoft
supported technologies
Comment III.22
Section III.G contains this, it is the second to last paragraph in the
section:
"Nothing in this section shall prohibit Microsoft from entering
into (a) any bona fide joint venture or (b) any joint development or
joint services arrangement with any ISV, IHV, IAP, ICP, or OEM for a
new product, technology or service, or any material value-add to an
existing product, technology or service, in which both Microsoft and
the ISV, IHV, IAP, ICP, or OEM contribute significant developer or other
resources, that prohibits such entity from competing with the object
of the joint venture or other arrangement for a reasonable period of
time."
Microsoft should be allowed to enter into these arrangements, but it should
be allowed to require it to "prohibits such entity from competing
with the object of the joint venture or other arrangement for a reasonable
period of time.". Again, "reasonable period of time" is ambiguous
and open ended, and non-compete clauses have no pro-competive role other
than exclusionary when included in agreements by a Monopolist such as
Microsoft. Joint development or joint services agreements should
not be restricted in this manner. If an actual separate entity is formed,
a joint venture that includes the incorporation or foundation of a separate
independent legal entity, the entity in question could have non-competition
restrictions placed on it, but not the shareholder companies themselves
(i.e. Microsoft and the other party).
Comment III.23
Section III.G, last paragraph, reads:
This Section does not apply to any agreements in which Microsoft
licenses intellectual property in from a third party.
This statement, is very ambiguous and unqualified. The meaning of "Microsoft
licenses intellectual property in from a third party" could easily mean
that Microsoft products that include any third party intellectual propery
are exempt from the section. Most Microsoft products contain third party
software, certainly its operating systems do (for example the Veritas/Seagate
backup software and the Veritas Volume Manager included in both Windows
XP and Windows 2000; the BSD software included in Windows 2000 and Windws
XP; the Mosaic sofware included in all version of Internet Explorer; the
Java software included in Windows 2000 and Windows XP; the printing drivers
and other device drivers from IHVs included in Windows 2000 and Windows
XP; the amount of software licensed into these products is very large;
etc). Additionally, there can also be other forms of intellectual licenses
that apply to these and other products (for example licenses to use patents
of third parties). If the clause is intended to mean something different
from my interpretation, please explain what it is intended to mean, and
what terms in that sentence ensures that only that meaning is allowed.
This sentence should be removed completely from this section. Alternatively,
a sentence that says:
Where terms in this section would cause a third party who
has licensed software or any other form of intellectual property to
Microsoft to have its license agreement violated then the specific terms
in this section that would cause such a license breach do not apply.
Unless the third party, at its own discrtion, chooses to allow the specific
violations under an agreement amendment. Violation of the license agreement
means violation to the detriment of the interest of the third party
and not violation to the detriment of Microsoft's interests. Additionally,
Microsoft should proactively inform the Microsoft Internal Compliance
Officer, the Technical Committee, and the Plaintiffs about the circumstances
in question and provide, as priviledged communication and without violating
the interests of the third party, all information required for their
enforcement activities.
Comment III.24
Section III.H.2 (the first such section, there are two such sections in
Section III.H) reads:
"2. Allow end users (via a mechanism readily
available from the desktop or Start menu), OEMs (via standard OEM preinstallation
kits), and Non-Microsoft Middleware Products (via a mechanism which
may, at Microsoft’s option, require confirmation from the end
user) to designate a Non-Microsoft Middleware Product to be invoked
in place of that Microsoft Middleware Product (or vice versa) in any
case where the Windows Operating System Product would otherwise launch
the Microsoft Middleware Product in a separate Top-Level Window and
display either (i) all of the user interface elements or (ii) the Trademark
of the Microsoft Middleware Product."
These are the issues:
- The text "require confirmation from the end user" should include
statements that ensure that Microsoft will not act in a discriminatory
or derrogatory manner in those confirmations. For example, Microsoft
should not be allowed to include as part of that confirmation process:
documentation, help, verbal communitation or any other means discriminatory
or derrogatory statements. Examples of such statemetns are: "By choosing
this option, Microsoft voids the warranty of the product or disclaims
its obligation to provide support. Microsoft has not tested this third
party option, use at your own risk. Use of this option might cause
data loss, corruption, etc." Microsoft has included messages in their
products purposedly to cause third parties to not use non-Microsoft
technology. The Windows 3.0 betas included messages similar to these
when Windows realized that it was running on top of Digital Research's
DR-DOS Operating System (instead of running on top of Microsoft's
MS-DOS).
- These statements: "launch the Microsoft Middleware Product in a
separate Top-Level Window and display either (i) all of the user interface
elements or (ii) the Trademark of the Microsoft Middleware Product."
allow for Microsoft to easily subvert the intent by not Trademarking
the Microsoft Middleware (while allowing compound Trademarks suchs
as "Windows (R) Stuff"), by only showing all but one (1) of the user
interface elements. The restriction to a separate Top-Level
Window means that by providing it in a subwindow of an existing window
on in a visually separate top level window that is controlled by a
Microsoft non-separate or independent process, these escape clauses,
again provide Microsoft with a a myriad ways to escape the intent
of the clause. Additionally because of the software maleability the
restriction to only Microsoft Middleware Products should not apply.
Section III.H.2 (the first such section, there are two such sections in
Section III.H) should read:
2. Allow end users (via a mechanism readily
available from the desktop or Start menu), OEMs (via standard OEM preinstallation
kits), and Non-Microsoft software and technologies (via a mechanism
which may, at Microsoft’s option, require confirmation from the
end user in a non-discriminatory and non-derrogatory manner) to designate
a Non-Microsoft software or technologies to be invoked in place
of any Microsoft Middleware, Microsoft Application or any Microsoft
Operating System feature that existed in the market as a third party
product prior to Microsoft's incorpration of such a feature into its
Operating System (or vice versa) in any case where the Windows Operating
System Product would otherwise launch the Microsoft Middleware Product, Microsoft
Applications or any such Microsoft Operating System.
Comment III.25
Section III.H.3 allows for "(b) seek such confirmation from the end user
for an automatic (as opposed to user-initiated) alteration of the OEM’s
configuration until 14 days after the initial boot up of a new Personal
Computer". Such confirmation must be sought through non-discriminatory
and non-derrogatory means (as outlined in Comment III.23). Additionally
such confirmation from the end user must allow the user to reject the
continued request for this confirmation by providing an easily visible
checkbox that indicates: "would you like to be asked this question again
in the future?" if the user doesn't want this question to be asked in
the future it selects the checkbox and the question is never asked again
(and the current settings remain unchanged).
Comment III.26
Section III.H.3.2 (the second such section, there are two such sections
in Section III.H) reads:
"2. that designated Non-Microsoft Middleware
Product fails to implement a reasonable technical requirement (e.g.,
a requirement to be able to host a particular ActiveX control) that
is necessary for valid technical reasons to supply the end user with
functionality consistent with a Windows Operating System Product, provided
that the technical reasons are described in a reasonably prompt manner
to any ISV that requests them."
Issues:
- The "designated Non-Microsoft Middleware Product" term should be
"designated Non-Microsoft software or technology".
- Requirements to host a paricular ActiveX control must require that
Microsoft proactively documents the interfaces of the particular ActiveX
control, and doesn't prevent through signature or any other mechanism
such hosting by the Non-Micorosft software or technology.
- The "provided that the technical reasons are described in a reasonably
prompt manner to any ISV that requests them" text shold read "Microsoft
must pro-actively and broadly (through the MSDN program and web sites) describe
the technical reasons reasonable manner." Any such "valid technical
reasons" must be communicated to the Technical Committee, the Microsoft
Internal Compliance Officer and the Plaintiffs.
Section III.H.3.2 (the second such section, there are two such sections
in Section III.H) should read:
"2. that designated Non-Microsoft software
or technology fails to implement a reasonable technical requirement
(e.g., a requirement to be able to host a particular ActiveX control)
that is necessary for valid technical reasons to supply the end user
with functionality consistent with a Windows Operating System Product,
provided that the technical reasons and detailed and complete technical
documentation and mechanisms (component signatures) are described in
a reasonably prompt manner to all ISVs through the MSDN program or its
successor. Addionally the valid technical reasons and any other information
relevant to the reasons must be communicated to the Technical Committee,
the Microsoft Internal Compliance Officer,the Plaintiffs and the ISVs
in question."
Comment III.27
The last paragraph of Section III.H.3 reads:
"Microsoft’s obligations under this Section III.H as
to any new Windows Operating System Product shall be determined based
on the Microsoft Middleware Products which exist seven months prior
to the last beta test version (i.e., the one immediately preceding the
first release candidate) of that Windows Operating System Product."
Issues:
- Again this is tied to Microsoft Middleware Prodcuts, it should
be replaced by the broader term.
- When a technology "exists" can lead to ambiguity given that Microsoft
might dictate that technology doesn't exist until it determines (at
its sole discretion) that it exists. This ambiguity is not required.
The last paragraph of Section III.H.3 should be removed completely. Microsoft
can introduce new Microsoft Middleware, Microsoft Applications, Microsoft
Technologies, Microsoft Hardware at any arbitrary point in time after
the release of an Operating System product. In so far as those Microsoft
technologies alter user's preferences and default system settings, saving
and restoring those settings sould be supported through an Operating System
mechanism and user interface that allows for these settings to be manipulated.
Comment III.28
The first paragraphs of Section III.I reads:
"I. Microsoft shall offer to license to
ISVs, IHVs, IAPs, ICPs, and OEMs any intellectual property rights owned
or licensable by Microsoft that are required to exercise any of the
options or alternatives expressly provided to them under this Final
Judgment, provided that"
The text "shall offer to license" requires that licensing be offered,
it doesn't require that it actually enter into such license agreements.
The text should instead read:
I. Microsoft shall offer to license, and
shall make its best effort to actually license, to ISVs, IHVs, IAPs,
ICPs, and OEMs any intellectual property rights owned or licensable
by Microsoft that are required to exercise any of the options or alternatives
expressly provided to them under this Final Judgment, provided that
Comment III.29
Section III.I.1 reads:
"1. all terms, including royalties or other
payment of monetary consideration, are reasonable and non-discriminatory;"
Allowing for per unit royalties or prohibitive up front licensing fees
might prevent Microsoft competitors from actually being able to participate
competitibly in the relevant product markets. This Section III.I.1 should
read instead:
"1. all terms, are reasonable and non-discriminatory.
Royalties or other payments of monetary consideration are explicitly
forbidden from the terms when the intellectual property is to be used
only for interoperation with a Microsoft Operating System product."
For example such a license would not require royalties from a server Operating
System to interoperate with a Microsoft Operating System for Personal
Computers, but if the server Operating System makes use of the licensed
intellectual property to interoperate with non-Microsoft Operating Systems
for Personal Computers, then a royalty might be required by Microsoft.
Comment III.30
Section III.I.2 reads:
"2. the scope of any such license (and
the intellectual property rights licensed thereunder) need be no broader
than is necessary to ensure that an ISV, IHV, IAP, ICP or OEM is able
to exercise the options or alternatives expressly provided under this
Final Judgment (e.g., an ISV’s, IHV’s, IAP’s, ICP’s
and OEM’s option to promote Non-Microsoft Middleware shall not
confer any rights to any Microsoft intellectual property rights infringed
by that Non-Microsoft Middleware);"
XXX
Comment III.31
Section III.I.3 reads:
"an ISV’s, IHV’s, IAP’s, ICP’s, or
OEM’s rights may be conditioned on its not assigning, transferring
or sublicensing its rights under any license granted under this provision;"
Not allowing the transferring or assignment of these parties rights under
certain circumstances, for example under an acquisition, is inherently
a form of discrimination. Given that the licenses are to be offered in
a non-discriminatory fashion, it is important that such licenses once
offered be available in the future and that the licensing not be restricted
to a given period of time. If subsequent versions of technology become
available, and new licenses are developped for that technology, the older
licenses to the earlier technology should continue to be offered for the
earlier verisions of the technology.
Comment III.32
The paragraphs immediately after Section III.I.5 reads:
"Beyond the express terms of any license granted by Microsoft
pursuant to this section, this Final Judgment does not, directly or
by implication, estoppel or otherwise, confer any rights, licenses,
covenants or immunities with regard to any Microsoft intellectual property
to anyone."
XXX
Comment III.33
Section III.J.2.b reads:
"that the licensee:
....
(b) has a reasonable business need for the API, Documentation or Communications
Protocol for a planned or shipping product,"
Microsoft shall not unreasonably dispute the licensee's assertions with
respect to III.J.2.b, any individual member of the Technical Committee
through direct communication with the prospective licensee can make a
positive determination about the III.J.2.b requirement and inform Microsoft
about its determination without any further Microsoft argument, dispute
or delay about the prospective licensee meeting the III.J.2.b requirement
(Court intervention shall not be required).
Section III.J.2.b should read:
(b) has a reasonable business need (as promptly and in a
non-discriminating manner determined by Microsoft or any one individual
member of the Technical Committee), for the API, Documentation
or Communications Protocol for a planned or shipping product
Comment III.33
Section III.J.2.b reads:
"that the licensee:
....
(c) meets reasonable, objective standards established by Microsoft for
certifying the authenticity and viability of its business"
It should instead read:
(c) meets reasonable, objective and non-discriminatory standards
(proposed by Microsoft and promptly approved by the Technical Committe
in consultation with the Plaintiffs) for certifying the authenticity
and viability of its business, the actual determination of the actual
authenticity and viability of the business can be made by Microsoft
or any one member of the Technical Committee after taking into consideration
legal consultation from the Technical Committee's legal staff
Comment III.34
Section J.2.d reads:
"that the licensee:
....
(d) agrees to submit, at its own expense, any computer program using
such APIs, Documentation or Communication Protocols to third-party verification,
approved by Microsoft, to test for and ensure verification and compliance
with Microsoft specifications for use of the API or interface, which
specifications shall be related to proper operation and integrity of
the systems and mechanisms identified in this paragraph."
The issues are:
- Should be at Microsoft's expense, not the licensee's.
- Verification should bot be performed by "third-party verification,
approved by Microsoft" if such verification is required by Microsoft
it should be done under staff hired by the Technical Committee and
at Microsoft's expense and not through unknown for profit relationships
and agreements between a third party and Microsoft. The intent of
this section is for "proper operation and integrity of the systems
and mechanisms", Microsoft should be satisfied with the Technical
Committee staff performing these duties unless its goals are other
than those expressed herein.
- The text "to test for and ensure verification and compliance with
Microsoft specifications for use of the API or interface, which specifications
shall be related to proper operation and integrity of the systems
and mechanisms identified in this paragraph" refers to to a "Microsoft
specifications for use of the API or interface", these specifications
shall be made available to the licensee.
Section J.2.d should read:
(d) agrees to submit, at Microsoft's expense, any computer
program using such APIs, Documentation or Communication Protocols to
the Technical Committe for verification, to test for and ensure verification
and compliance with Microsoft specifications (which Microsoft shall
make available to the licensee) for use of the API or interface, which
specifications shall be related to proper operation and integrity of
the systems and mechanisms identified in this paragraph.
Comment IV.1
Section IV.A.2.a reads:
"a. Access during normal office hours to
inspect any and all source code, books, ledgers, accounts, correspondence,
memoranda and other documents and records in the possession, custody,
or control of Microsoft, which may have counsel present, regarding any
matters contained in this Final Judgment."
This should be expanded to include electronic forms of communication in
electronic form, not printed form, because it is extremely hard to sift
through information, such as source code, in non-electronic form.
Section IV.A.2.a should read:
a. Access during normal office hours to
inspect any and all source code, source code control systems, bug or
defect databases, design documents, build procedures, binary codes,
books, ledgers, electronic ledgers, electronic databases, accounts,
correspondence, memoranda, newsgroups, discussions forums, web sites
and other documents and records in the possession, custody, or control
of Microsoft, which may have counsel present, regarding any matters
contained in this Final Judgment. Access to electronic forms of information
shall be provided in electronic form and not in only in printed form.
Comment IV.2
Section IV.B.2 describes "The TC members shall be experts in software
design and programming." section IV.B.2.c reads:
"c. shall perform any other work for Microsoft
or any competitor of Microsoft for two years after the expiration of
the term of his or her service on the TC."
Given that Microsoft competes in almost every software market conceivable,
it is a strecth to request two years of non-compete agreement from the
TC member. Two such years of non-compete could be provided only if Microsoft
provides two such years of salary to the TC member with a yearly inflationary
bonus adjustment per year.
Comment IV.3
Section IV.B.8.iii reads:
"(iii) obtain reasonable access to any
systems or equipment to which Microsoft personnel have access;"
This should reads:
(iii) obtain reasonable access to any systems,
services or equipment to which Microsoft personnel have access; services
should include but not be limited to: authentication, file sharing,
discussion forums, newsgroups, chat channels, source code control systems,
bug/defect database systems, design management systems, document repositories,
web sites, etc.
Comment IV.4
Section IV.D.4.d reads:
"d. No work product, findings or recommendations
by the TC may be admitted in any enforcement proceeding before the Court
for any purpose, and no member of the TC shall testify by deposition,
in court or before any other tribunal regarding any matter related to
this Final Judgment."
This is one of the most egregious terms of the settlement. Given that
the Technical Committee has hardly any actual enforcement duties, other
than monitoring, and the Technical Committee actually being an impartial
participant in the actual history of Microsoft's interaction with third
parties and Microsoft's possible violations of settlement terms, it is
astonishing that this term mandates that the actual work product of the
Technical Committee not be admissible as evidence of the settlement enforment
activities.
Microsoft deifnitely over-reached by requesting this, this shows Microsoft's
true intentions (another 5 years without actual enforcement plus maybe
another 5 of further litigation), Microsoft should be forced to accept
instead the contrary of this term.
It is an interesting legal question if any documents related to presummed
antitrust violations are made the work product of the Technical Committee,
then by IV.D.4.d and those documents being un-admissible, then what other
documents could be used to initiate Court proceedings by the plaintiffs
without any such documents being alleged by Microsoft as being derived
from the TC's un-admissible work. How could the plaintiffs promptly
produce equivalent analysis without it being under this gag order?
Section IV.D.4.d must read:
"d. All work product, findings or recommendations
by the TC must be admitted in any enforcement proceeding before the
Court for any purpose, and any member of the TC is herein explicitly
allowed to testify by deposition, in court or before any other tribunal
regarding any matter related to this Final Judgment."
If the Plaintiffs are not willing to mandate this rewritten IV.D.4.d they
are engaging in blatant dereliction of duty of the antitrust enforcement
offices and duties that they purport to serve.
Comment IV.5
Section IV.D.4.e reads:
"e. The TC may preserve the anonymity of
any third party complainant where it deems it appropriate to do so upon
the request of the Plaintiffs or the third party, or in its discretion."
It should read instead:
"e. The TC must preserve the anonymity
of any third party complainant upon the request of the Plaintiffs or
the third party. Where the TC deems it appropriate to do so, and it
has not ben requested, by the Plaintiffs or the third party, the TC
in its own discretion it may preserve the anonymity of any third party
complainant."
Comment V.1
Section V.A reads:
"A. Unless this Court grants an extension,
this Final Judgment will expire on the fifth anniversary of the date
it is entered by the Court."
The Final Judgement should last longer than five years. The actual
initial antritrust violations by Microsoft occured more than five years
ago and we are still without any form of remedy. The legal system works
very slowly. By entering this Final Judgement, and Microsoft continuing
its anti-competitive practices, it would probably take more than five
years to resolve those further complaints. Given that the orignal D.O.J.
vs Microsoft settlement that related to per computer unit licensing was
ambiguous enough that it ended up being mostly ignored and full antritrust
proceedings were required, it wouldn't surprise me if this agreement which
is even more ambiguous and has many more loopholes means at Microsoft's
disposal to circumvent its intent would not result in many more years
of litigation without any real behaviour change on Microsoft's part.
Mandating an expiration only after Microsoft no longer has monopoly power
in the market of Operating Systems for Personal Computers for Intel x86
or x86 compatible systems is more appropriate. Court proceedings or the
under the parties agreement and Court supervision would be required for
the settlement to expire. Otherwise a period longer than 5 years, at least
12 years should be mandated.
It must be observed how durable has Microsoft's monopoly been and that
it was initially cemented through antitrust violations for which a Final
Judgement with no teeth got the industry into its current state:
- Since the mid 80s it faced no competition. Through illegal competitive
behaviour, it foreclose the market to then Digital Research's DR-DOS
product (an atlernative to Microsoft's MS-DOS). Microsoft has recently
settled a separate antitrus suit by the current owner of the DR-DOS
assets (Caldera). These original violations animated the first consent
decreed between D.O.J. and Microsoft 1995. That consent decree was
determined to be ambiguous by the appellate Court in its allowance
of integration, and a full antitrust lititgation ensued.
- Even though Microsoft's technology significantly lagged behind
the technical abilities of the systems (for example it took Microsoft
10 years to produce a quasi 32 bit operating system after x86 Intel
32 bit capable operating systems became available in the market) no
other competitors could enter the market because Microsoft moved from
per-unit licenses to per-system licenses for each model of system
that the OEM manufactured (and this continued to exclude other vendors
from the market).
- The one significant threat that Microsoft has faced to its personal
computer operating system monopoly has been the advent of the Internet
with open standards and as a means for delivering applications from
server computers (either through Java or directly as web applications)
or through middleware based applications that could perform
on Microsoft Operating System based personal computers or personal
computers running other operating systems. This one threat has been
completely erradicated from the market. Microsoft will continue to
exclude Java as a viable Internet based application delivery mechanisms,
because this Final Judgement doesn't mandata the allowance of interoperability
of Sun's Java with Microsoft's Internet Explorer (the Top Level Window
definition is purposedly design to make this impossible).
Dereliction of duty now from the Plaintiffs would mean that even under
the most blatant violations of antritrust laws and astonishing findings
of fact, that Microsoft would escape with a Final Judgement that is too
short and very weak from many perspectives. 12 years of enforcement
seem the minimal time for market conditions to actually have another opportunity
to arise and for actual market change to actually occur.
Comment V.2
Section V.B reads:
"B. In any enforcement proceeding in which
the Court has found that Microsoft has engaged in a pattern of willful
and systematic violations, the Plaintiffs may apply to the Court for
a one-time extension of this Final Judgment of up to two years, together
with such other relief as the Court may deem appropriate."
The Plaintiffs in any enforcement proceeding shall not be limited to only
one extension of two years. If the Plaintiffs cannot request as a remedy
to future Microsoft's violations of this settlement, then it is not clear
if the Court can actually mandate a remedy that is not being requested.
Additionally, limiting the length of the actual extension at this time
and as part of this settlement seems beyond belief given that any enforcement
will require the Court participation because there is no actual real enforcement
(other than monitoring by the Technical Committee with its work product
later bein un-admissible as court evidence and without the TC members
being allowed as witnesses).
Section V.B should read:
B. In any enforcement proceeding in which
the Court has found that Microsoft has engaged in a pattern of willful
and systematic violations, the Plaintiffs may apply to the Court for
an extension of this Final Judgment for up to ten years, together with
such other relief as the Court may deem appropriate, which is hereby
agreed by the parties that it is acceptable for it to be of any length
as the Court deems appropriate.
Comment VI.1
Definition VI.A reads:
'A. "Application Programming Interfaces
(APIs)” means the interfaces, including any associated callback
interfaces, that Microsoft Middleware running on a Windows Operating
System Product uses to call upon that Windows Operating System Product
in order to obtain any services from that Windows Operating System Product.'
Issues are:
- API refers to the interfaces that are used not only by Microsoft
Middleware uses, but any other software uses. APIs are mostly
used by regular applications, narrowing the definition of APIs to
what Microsoft Middleware uses is a contorted way to allow even
more freedoms of circumvention to Microsoft. For example for Microsoft
to perform anti-competitive practices through undocumented interfaces
that its applications use, but that Microsoft's Middleware doesn't
use, thus excluding those APIs (by definition!) from being covered
by this settlement. Amazingly, this definition proposed to define
API to mean something other than Application Programmin Interface,
do you see the word application? It is not Middleware Programming
Interface! Simply amazing!
Definition VI.A should be replaced by the definition in the Final Judgement
entered by Judge Jackson (definition 7.b):
A. “Application Programming Interfaces
(APIs)” means the interfaces, service provider interfaces, and
protocols that enable a hardware device or an application, Middleware,
or server Operating System to obtain services from (or provide services
in response to requests from) Platform Software in a Personal Computer
and to use, benefit from, and rely on the resources, facilities, and
capabilities of such Platform Software.
If another definition is adopted, it should be explained why it is different
from the one proposed.
Comment VI.2
Definition VI.B reads:
'B. “Communications Protocol”
means the set of rules for information exchange to accomplish predefined
tasks between a Windows Operating System Product and a server operating
system product connected via a network, including, but not limited to,
a local area network, a wide area network or the Internet. These
rules govern the format, semantics, timing, sequencing, and error control
of messages exchanged over a network.'
Issues:
- Given that Communication Protocols relevant to this settlement
(given the proposed changes in other sections) also exist between
two personal computers, the definition should reflect that.
- The set of tasks between the parties in a protocol doesn't have
to be predefined, there are protocols under which the parties actually
sent pieces of arbitrary code to each other to perform actions that
are arbitrary.
Definition VI.B should read:
'B. “Communications Protocol”
means the set of rules for information exchange to accomplish tasks
between a Windows Operating System Product and another operating system
connected via a network, including, but not limited to, a local area
network, a wide area network or the Internet. These rules govern
the format, semantics, timing, sequencing, and error control of messages
exchanged over a network.'
Comment VI.3
Definition VI.J reads:
'J. “Microsoft Middleware”
means software code that
- Microsoft distributes separately from a Windows Operating System
Product to update that Windows Operating System Product;
- is Trademarked;
- provides the same or substantially similar functionality as a
Microsoft Middleware Product; and
- includes at least the software code that controls most or all
of the user interface elements of that Microsoft Middleware.
Software code described as part of, and distributed separately to update,
a Microsoft Middleware Product shall not be deemed Microsoft Middleware
unless identified as a new major version of that Microsoft Middleware
Product. A major version shall be identified by a whole number
or by a number with just a single digit to the right of the decimal
point.'
This is a very astonishing definition of Middleware, nowhere does it talk
about software that provides APIs to other software components, which
is core to any definition of Middleware. The definition of Non-Microsoft
Middleware (VI.M) does seem appropriate to what Middleware is. Definition
7.q in Judge Jackson's Final Judgement should be seen for a reasonable
defintion of Middleware:
'“Middleware” means software that operates, directly
or through other software, between an Operating System and another type
of software (such as an application, a server Operating System, or a
database management system) by offering services via APIs or Communications
Interfaces to such other software, and could, if ported to or interoperable
with multiple Operating Systems, enable software products written for
that Middleware to be run on multiple Operating System Products. Examples
of Middleware within the meaning of this Final Judgment include Internet
browsers, e-mail client software, multimedia viewing software, Office,
and the Java Virtual Machine. Examples of software that are not Middleware
within the meaning of this Final Judgment are disk compression and memory
management.'
These notions in the VI.J “Microsoft Middleware” definition
are astonishing:
- "2. is Trademarked;" other than to provide Microsoft another escape
clause, this term adds absolutely no value. With this term as part
of the definition, Microsoft can rename some component, not use an
earlier trademark name for it, and voila! it is no longer Microsoft
Middleware.
- The notion of what Microsoft Middleware is certainly cannot be
tied to the version number given to it! Something is what it
is whatever the name used to refer to it. Something as arbitrary
as a version number and as easily maleable as a version number certainly
cannot be criteria to be used to determine what it is. Contract
writting 101 should certainly tech any lawyers about this. It is interesting
to pose these questions to the Plaintiffs:
- What is the major version number of Office XP ? What is
the version number of Internet Explorer.NET ? What is the
version number of Outlook Express.NET ? What is the version
number of Windows XP, Windows CE, Windows ME, Winodows 95 OSR2 ?
Widonws 95?
Microsoft certainly can change interfaces, protocols, APIs,
etc in a major, minor, service pack, hot fix, or any other packaging
of its software. The names or version numbers of such software should
not be used to determine what is contained by them.
Both of these (VI.J.2 and VI.J last paragrpah) should be removed from
the definition.
The term VI.J.4 seems to be there only for the purpose of allowing Microsoft
to slice and recombine its software in such a way as to ensure that the
user interface component be the one called the "Microsoft Middleware"
and not the components that acutally perfrom the traditional Middleware
functionality (see Jacksons definition above) of providing APIs to other
software. It is very intereseting that Middleware is mostly not
about user interfaces but about providing interfaces to other applications,
applications that relly on the Middleware as a platform. Most Midleware
doesn't have a user interface, if it has one it is incidental.
The term VI.J.4 should be removed.
After these adjustments, Defintion VI.J should just be:
J. “Microsoft Middleware” means
software code that
- Microsoft distributes separately from a Windows Operating System
Product to update that Windows Operating System Product; and
- provides the same or substantially similar functionality as a
Microsoft Middleware Product; and
Comment VI.4
Definition VI.K reads:
'K. “Microsoft Middleware Product”
means
- the functionality provided by Internet Explorer, Microsoft’s
Java Virtual Machine, Windows Media Player, Windows Messenger, Outlook
Express and their successors in a Windows Operating System Product,
and
- for any functionality that is first licensed, distributed or
sold by Microsoft after the entry of this Final Judgment and that
is part of any Windows Operating System Product
- Internet browsers, email client software, networked audio/video
client software, instant messaging software or
- functionality provided by Microsoft software that —
- is, or in the year preceding the commercial release of
any new Windows Operating System Product was, distributed
separately by Microsoft (or by an entity acquired by Microsoft)
from a Windows Operating System Product;
- is similar to the functionality provided by a Non-Microsoft
Middleware Product; and
- is Trademarked.
Functionality that Microsoft describes or markets as being part of a
Microsoft Middleware Product (such as a service pack, upgrade, or bug
fix for Internet Explorer), or that is a version of a Microsoft Middleware
Product (such as Internet Explorer 5.5), shall be considered to be part
of that Microsoft Middleware Product.'
The first issue with this definition is, what is the connection between
VI.K.2 and the presumably subordinate VI.K.2.a and VI.K.2.b ? The
sentence under VI.K.2 seems incomplete, it should end in something like
:
"... and that is part of any Windows Operating System Product,
and is either:"
Other issues are:
- Throughout the trial Microsoft and depositions (but not before
litigation was brought into action) would not budge on its pretense
incomprehension of what an Internet Browser is. They would
only talk about browsing technologies but would react stupified
to the notion of Internet Browsers, particularly their own, when they
were referred to as "the browser product." It is amusing and without
any sign of legal thouroughness that the Plaintiffs have come to agree
with Microsoft to a definition that uses the term "Internet browser"
without actually providing a definition for such a term anywhere in
the proposed Final Judgement. Not even what a Internet Browser
is being agreed amongst the parties in the dereliction of duty that
this document embodies.
- Given that this section includes other disputed terms such as Internet
Explorer, it sould seem to be important to include precise definitions
about what these actual terms mean. Maybe when the Plaintiffs try
to do this together with Microsoft they will realize that only contorted
definitions such as the ones for API, Microsoft Middleware, Microsoft
Middleware Product, etc. are arrived at.
- Again software can be or stop from being a Microsoft Middleware
Product depending on whether it is trademarked or not (which to no
ones surprise is another contorted and unnatural definition by itself).
- VI.K.2.b.i refers to "distributed separately by Microsoft from
a Windows Operating System Product", that term should be precisely
defined to mean what it seems to mean, because Microsoft having argued
in court that a sandwich is part of Windows if they soley dictate
so, then they surely would say that any code "is distributed as part
of a Windows Operating System" even if the code is sent to the end
user in a CD-ROM inside a sandwich not included in the Windows box,
or more complexily and seriously, if it is sent to the user's system
through a the Windows update process.
- VI.K.2 seems to require that the functionality be "part of any
Windows Operating System Product" but immediately and sub-ordinated
to that clause it also says VI.K.2.b.i "distributed separately by
Microsoft from a Windows Operating System Product" which seems to
contradict the pre-requisite governing condition (it has to be both
part of and not part of?), that would be by necessity the empty set,
because something cannot be both part of something and not part of
something; thus redering the whole contorted VI.K definition sense-less.
- The final paragraph on VI.K states that:
'Functionality that Microsoft describes or markets as being
part of a Microsoft Middleware Product (such as a service pack, upgrade,
or bug fix for Internet Explorer), or that is a version of a Microsoft
Middleware Product (such as Internet Explorer 5.5), shall be considered
to be part of that Microsoft Middleware Product.'
as some form of saving grace for the grotesquely constructed prior definition.
Obviously, since the litigation started, Microsoft has described everything
as part of Windows, so one should not wait standing for Microsoft to
ever again market anything in their anti-competitive campaigns as not
being part of Windows.
Definition VI.K should be replaced by:
'K. “Microsoft Middleware Product”
means
- the functionality provided by Internet Explorer, Microsoft’s
Java Virtual Machine, Windows Media Player, Windows Messenger, Outlook
Express and their successors in a Windows Operating System Product,
and
- any functionality that is first licensed, distributed or sold
by Microsoft before, on, or after the entry of this Final Judgment
and that is later made part of any Windows Operating System Product,
this shold include but not be limited to: Internet browsers, email
client software, networked audio/video client software, instant
messaging software; or
- functionality provided by Microsoft software that —
- is, or at any time preceding the commercial release of any
new Windows Operating System Product was, distributed separately
by Microsoft (or by an entity acquired by Microsoft) from a
Windows Operating System Product; or
- is similar to the functionality provided by a Non-Microsoft
Middleware Product
Functionality that Microsoft describes or markets as being
part of a Microsoft Middleware Product (such as a service pack, upgrade,
or bug fix for Internet Explorer), or that is a version of a Microsoft
Middleware Product (such as Internet Explorer 5.5), shall be considered
to be part of that Microsoft Middleware Product.'
Additionally, reasonable definitions of what these mean should be included
as separate definitions: "Internet Explorer, Microsoft’s Java Virtual
Machine, Windows Media Player, Windows Messenger, Outlook Express and
their successors in a Windows Operating System Product"
Comment VI.5
The word product should be replaced by technology in definition VI.M because
not all middleware is made available in a product form, some of it might
be made freely available or under conditions or packaging that don't relate
directly to it being a product:
'M. “Non-Microsoft Middleware”
means a non-Microsoft software product running on a Windows Operating
System Product that exposes a range of functionality to ISVs through
published APIs, and that could, if ported to or made interoperable with,
a non-Microsoft Operating System, thereby make it easier for applications
that rely in whole or in part on the functionality supplied by that
software product to be ported to or run on that non-Microsoft Operating
System.'
It shold read:
'M. “Non-Microsoft Middleware”
means a non-Microsoft software technology running on a Windows Operating
System Product that exposes a range of functionality to ISVs through
published APIs, and that could, if ported to or made interoperable with,
a non-Microsoft Operating System, thereby make it easier for applications
that rely in whole or in part on the functionality supplied by that
software product to be ported to or run on that non-Microsoft Operating
System.'
Comment VI.6
The requirement under VI.N.ii that:
'and (ii) of which at least one million copies were distributed
in the United States within the previous year.'
Seems excessive, a more reasonable number of one hundred thousand copies
is more appropriate because the benefits of the settlement can benefit
nascent technologies and not just more established ones.
Comment VI.7
The definition under VI.O of OEM is self centered, to be an OEM, the OEM
has to be a licensee of a Windows Operating System Product. How
do new OEMs come to be if Microsoft refused to license its products directly
or uses intermediaries not under its ownership control but under agreement
control to do actual sublicensing? The definition of an OEM should
be independent of whether they at any given point in time they have a
direct license from Microsoft (instead of purchasing the product in the
channel like smaller OEMs do). The definition of Covered OEM already
takes care of them being licensees.
'O. “OEM” means an original equipment manufacturer
of Personal Computers that is a licensee of a Windows Operating System
Product.'
Should be:
O. “OEM” means an original
equipment manufacturer of Personal Computers.
Comment VI.8
Definition VI.Q reads:
'Q. “Personal Computer” means
any computer configured so that its primary purpose is for use by one
person at a time, that uses a video display and keyboard (whether or
not that video display and keyboard is included) and that contains an
Intel x86 compatible (or successor) microprocessor. Servers, television
set top boxes, handheld computers, game consoles, telephones, pagers,
and personal digital assistants are examples of products that are not
Personal Computers within the meaning of this definition.'
The only concern here is if:
television set top boxes, handheld computers, game consoles,
telephones, pagers, and personal digital assistants
are constructed from Intel x86 or x86 compatible processors and Microsoft
offers a version Windows for them that allows any software designed for
Personal Computers to work on those systems, then what those products
would be are:
- x86 Personal Computer based handheld personal computers; or
- x86 Personal Computer based personal digital assistants; or
- x86 Personal Computer based personal game consoles; etc
For example today Microsoft offers a fully functional Personal Computer
as its game console, the Microsoft Xbox. If Microsoft were to offer Windows
XP for that system, it would not only be a game console but also a fully
function Personal Computer. Under those circumstances it should
not be excluded from the definition.
Comment VI.9
Defintion VI.R reads:
'R. “Timely Manner” means at
the time Microsoft first releases a beta test version of a Windows Operating
System Product that is distributed to 150,000 or more beta testers.'
Without actual evidence about the actual size of the MSDN subscription
base, it seems safer to rewrite this. Addtionally because of naming issues,
the term "beta test version" should be expandded into its meaning:
'R. “Timely Manner” means at
the time Microsoft first releases a release version of a Windows Operating
System Product through its MSDN developper program solely for the purpose
of developper testing and not intended for end user use for reasons
other than for testing. If Microsoft plans multiple such test
releases, then Timely Manner shall means the release time of a test
release that is at least one year away from the product's final availabilty
to OEMs for pre-installation or for consumer retail purchase, whichever
is earlier.'
Comment VI.10
Defintion VI.S reads:
'S. “Top-Level Window” means
a window displayed by a Windows Operating System Product that (a) has
its own window controls, such as move, resize, close, minimize, and
maximize, (b) can contain sub-windows, and (c) contains user interface
elements under the control of at least one independent process.'
This definition is purposedly constructed to prevent:
- An alternative Jave Virtual Machine (for example from Sun Microsystems)
from being invoked when Java Applets are invoked through a web page
because the window controls are the window controls of the Internet
Browser and the Java Applet executes within the same window. By Microsoft
using this defitintion to condition where it allows non-Microsoft
Middleware to be invoked it controls the most important way for Java
application execution (i.e. under a more complex web based application).
Thus Microsoft having killed Netscape Navigator's viability proceeds
to deny Java the remaining vehicle that it could have enjoyed under
this settlement, i.e. under Internet Explorer. Of course the Plaintiffs
do nothing other than acquesce under this settlement either because
of dereliction of duty or blatant technical misunderstanding of the
issues involved.
- For example, the "live chart" stock quotes provided (through Java
applets) by www.quote.com or the Chess application provided (Java
applet) by www.chessclub at
- http://www.chessclub.com/interface/java.html
- http://queen.chessclub.com/sji/index.html
Would simply continue to run under Microsoft Java Virtual
Machine and not under Sun's Java Virtual Machine when installed on the
same system and with all the provisions of the settlement fully implement
(and without any Microsoft violation of the terms whatsoever).
Thus Microsoft gets to reap the fruits of its anti-competitive camapaign
without having actually conceeded anything of substance for non-Microsoft
Middleware as it relates to Microsoft's Internet Explorer. The
same will occur with network video and audio formats because Microsoft
will make its players not start on a Top Level Window thus taking control
of audio and video formats of Real Networks players even when the end
user has choosen otherwise under the provisions of this agreement.
The notion of Top Level Window must be extricated from the settlement
and Microsoft should allow invocation of ActiveX based components of the
non-Microsoft Middleware under all circumstances, in a manner similar
under which today third party software is invoked under a non Top Level
Window and displayed within the Internet Explorer window without a problem
(for example see how Adobe's Acrobat Reader is displayed under a non-Top
Level Window). Microsoft has done already all the technical work in this
area, an it is now only putting contractual road blocks to all these natural
forms of invocation of non-Microsoft Middleware.
Comment VI.10
Definition VI.T reads:
'T. “Trademarked” means distributed
in commerce and identified as distributed by a name other than Microsoft®
or Windows® that Microsoft has claimed as a trademark or service
mark by (i) marking the name with trademark notices, such as ® or
, in connection with a product distributed in the United States;
(ii) filing an application for trademark protection for the name in
the United States Patent and Trademark Office; or (iii) asserting the
name as a trademark in the United States in a demand letter or lawsuit.
Any product distributed under descriptive or generic terms or a name
comprised of the Microsoft® or Windows® trademarks together
with descriptive or generic terms shall not be Trademarked as that term
is used in this Final Judgment. Microsoft hereby disclaims any
trademark rights in such descriptive or generic terms apart from the
Microsoft® or Windows® trademarks, and hereby abandons any such
rights that it may acquire in the future.''
The main issue throughout this proposed settlement with respect ot Trademarks
is that software is what it is irrespective of what it is called. The
definitions of Microsoft Middleware and Microsoft Middleware Product where
conditioned with them being trademarked (under this definition) as a means
to provide Microsoft and escape clause to make the no longer Microsoft
Middleware (and Microsoft Middleware Products). That concept should completely
go away. If it doesn't then the defintion of Trademarked shold be exactly
the legal defintion understood under the law and not this one.
Comment VI.11
Defitions VI.U reads:
'U. “Windows Operating System Product”
means the software code (as opposed to source code) distributed commercially
by Microsoft for use with Personal Computers as Windows 2000 Professional,
Windows XP Home, Windows XP Professional, and successors to the foregoing,
including the Personal Computer versions of the products currently code
named “Longhorn” and “Blackcomb” and their successors,
including upgrades, bug fixes, service packs, etc. The software
code that comprises a Windows Operating System Product shall be determined
by Microsoft in its sole discretion.'
The list must also include Windows 95, Windows 98, Windows SE, Windows
ME (collectively known as Windows 9x) and Windows NT 4.0 and all their
service releases. The current installed base is mostly made out
of these products. By purposedly excluding them Microsoft and the
Plaintiffs allow Microsoft to continue to prevent non-Microsoft Middleware
from fairly competing in the broad installed base and forces competition
to only occur under Microsoft's controlled evolution of the market. It
does so by not allowing competition from the broad installed base by not
affording the benefits of the settlement to that gigantic installed base
(i.e. all the versions of Windows 9x).
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