Sorry about that, here's the link from LinuxToday
http://www.cptech.org/at/ms/rnjl2kollarkotelynov501.htmlOn Sat, 10 Nov 2001, Dexter Graphic wrote: > Without a link to Nader's web site or some other reference > how do we know that this document is even legitimate? The > web is full of false and fabricated stories like this. It > even sound a bit *too* pro-"free software/open source" to > be believable. > > Dexter > > >-----Original Message----- > >From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of > >Edward Craig > >Sent: Friday, November 09, 2001 14:49 > >To: [EMAIL PROTECTED]; [EMAIL PROTECTED] > >Subject: [EUG-LUG:3755] Nader on Microsoft > > > > > >November 5, 2001 Letter from Ralph Nader and James Love to > >Judge Colleen Kollar-Kotelly regarding the USDOJ/Microsoft > >proposed settlement > > > >November 5, 2001 Letter from Ralph Nader and James Love to > >Judge Colleen Kollar-Kotelly regarding the USDOJ/Microsoft > >proposed settlement > > > > Ralph Nader > > P.O. Box 19312 > > Washington, DC 20036 > > > > James Love > > Consumer Project on Technology > > P.O. Box 19367 > > Washington, DC 20036 > > > > > >November 5, 2001 > > > >Judge Colleen Kollar-Kotelly > >United States District Court for the District of Columbia > >333 Constitution Avenue, NW > >Washington, DC 20001 > > > > RE: US v. Microsoft proposed final order > > > >Dear Judge Kollar-Kotelly, > > > >Introduction > > > >Having examined the proposed consent final judgment for USA > >versus Microsoft, we offer the following initial comments. > >We note at the outset that the decision to push for a rapid > >negotiation appears to have placed the Department of Justice > >at a disadvantage, given Microsoft's apparently willingness > >to let this matter drag on for years, through different > >USDOJ antitrust chiefs, Presidents and judges. The proposal > >is obviously limited in terms of effectiveness by the desire > >to obtain a final order that is agreeable to Microsoft. > > > >We are disappointed of course that the court has moved away > >from a structural remedy, which we believe would require > >less dependence upon future enforcement efforts and good > >faith by Microsoft, and which would jump start a more > >competitive market for applications. Within the limits of a > >conduct-only remedy, we make the following observations. > > > >On the positive side, we find the proposed final order > >addresses important areas where Microsoft has abused its > >monopoly power, particularly in terms of its OEM licensing > >practices and on the issue of using interoperability as a > >weapon against consumers of non-Microsoft products. There > >are, however, important areas where the interoperability > >remedies should be stronger. For example, there is a need > >to have broader disclosure of file formats for popular > >office productivity and multimedia applications. Moreover, > >where Microsoft appears be given broad discretion to deploy > >intellectual property claims to avoid opening up its > >monopoly operating system where it will be needed the most, > >in terms of new interfaces and technologies. Moreover, the > >agreement appears to give Microsoft too many opportunities > >to undermine the free software movement. > > > >We also find the agreement wanting in several other areas. > >It is astonishing that the agreement fails to provide any > >penalty for Microsoft's past misdeeds, creating both the > >sense that Microsoft is escaping punishment because of its > >extraordinary political and economic power, and undermining > >the value of antitrust penalties as a deterrent. Second, > >the agreement does not adequately address the concerns about > >Microsoft's failure to abide by the spirit or the letter of > >previous agreements, offering a weak oversight regime that > >suffers in several specific areas. Indeed, the proposed > >alternative dispute resolution for compliance with the > >agreement embraces many of the worst features of such > >systems, operating in secrecy, lacking independence, and > >open to undue influence from Microsoft. > > > >OEM Licensing Remedies > > > >We were pleased that the proposed final order provides for > >non-discriminatory licensing of Windows to OEMs, and that > >these remedies include multiple boot PCs, substitution of > >non-Microsoft middleware, changes in the management of > >visible icons and other issues. These remedies would have > >been more effective if they would have been extended to > >Microsoft Office, the other key component of Microsoft's > >monopoly power in the PC client software market, and if they > >permitted the removal of Microsoft products. But > >nonetheless, they are pro-competitive, and do represent real > >benefits to consumers. > > > > > >Interoperability Remedies > > > >Microsoft regularly punishes consumers who buy non-Microsoft > >products, or who fail to upgrade and repurchase newer > >versions of Microsoft products, by designing Microsoft > >Windows or Office products to be incompatible or non- > >interoperable with competitor software, or even older > >versions of its own software. It is therefore good that > >the proposed final order would require Microsoft to address > >a wide range of interoperability remedies, including for > >example the disclosures of APIs for Windows and Microsoft > >middleware products, non-discriminatory access to > >communications protocols used for services, and non- > >discriminatory licensing of certain intellectual property > >rights for Microsoft middleware products. There are, > >however, many areas where these remedies may be limited by > >Microsoft, and as is indicated by the record in this case, > >Microsoft can and does take advantage of any loopholes in > >contracts to create barriers to competition and enhance and > >extend its monopoly power. > > > > > >Special Concerns for Free Software Movement > > > >The provisions in J.1 and J.2. appear to give Microsoft too > >much flexibility in withholding information on security > >grounds, and to provide Microsoft with the power to set > >unrealistic burdens on a rival's legitimate rights to obtain > >interoperability data. More generally, the provisions in > >D. regarding the sharing of technical information permit > >Microsoft to choose secrecy and limited disclosures over > >more openness. In particular, these clauses and others in > >the agreement do not reflect an appreciation for the > >importance of new software development models, including > >those "open source" or "free" software development models > >which are now widely recognized as providing an important > >safeguard against Microsoft monopoly power, and upon which > >the Internet depends. > > > >The overall acceptance of Microsoft's limits on the sharing > >of technical information to the broader public is an > >important and in our view core flaw in the proposed > >agreement. The agreement should require that this > >information be as freely available as possible, with a high > >burden on Microsoft to justify secrecy. Indeed, there is > >ample evidence that Microsoft is focused on strategies to > >cripple the free software movement, which it publicly > >considers an important competitive threat. This is > >particularly true for software developed under the GNU > >Public License (GPL), which is used in GNU/Linux, the most > >important rival to Microsoft in the server market. > >Consider, for example, comments earlier this year by > >Microsoft executive Jim Allchin: > > > > http://news.cnet.com/news/0-1003-200-4833927.html > > > > "Microsoft exec calls open source a threat to > > innovation," Bloomberg News, February 15, 2001, > > 11:00 a.m. PT > > > > One of Microsoft's high-level executives says that > > freely distributed software code such as Linux > > could stifle innovation and that legislators need > > to understand the threat. > > > > The result will be the demise of both intellectual > > property rights and the incentive to spend on > > research and development, Microsoft Windows > > operating-system chief Jim Allchin said this week. > > > > Microsoft has told U.S. lawmakers of its concern > > while discussing protection of intellectual > > property rights . . . > > > > ''Open source is an intellectual-property > > destroyer,'' Allchin said. ''I can't imagine > > something that could be worse than this for the > > software business and the intellectual-property > > business.'' . . . > > > > > >In a June 1, 2001 interview with the Chicago Sun Times, > >Microsoft CEO Steve Ballmer again complained about the > >GNU/Linux business model, saying "Linux is a cancer that > >attaches itself in an intellectual property sense to > >everything it touches. That's the way that the license > >works,"1 leading to a round of new stories, including for > >example this account in CNET.Com: > > > > http://news.cnet.com/news/0-1003-200-6291224.html > > > > "Why Microsoft is wary of open source: Joe Wilcox > > and Stephen Shankland in CNET.com, June 18, 2001. > > > > There's more to Microsoft's recent attacks on the > > open-source movement than mere rhetoric: Linux's > > popularity could hinder the software giant in its > > quest to gain control of a server market that's > > crucial to its long-term goals > > > > Recent public statements by Microsoft executives > > have cast Linux and the open-source philosophy > > that underlies it as, at the minimum, bad for > > competition, and, at worst, a "cancer" to > > everything it touches. > > Behind the war of words, analysts say, is evidence > > that Microsoft is increasingly concerned about > > Linux and its growing popularity. The Unix-like > > operating system "has clearly emerged as the > > spoiler that will prevent Microsoft from achieving > > a dominant position" in the worldwide server > > operating-system market, IDC analyst Al Gillen > > concludes in a forthcoming report. > > > > . . . While Linux hasn't displaced Windows, it has > > made serious inroads. . . ]. . In attacking Linux > > and open source, Microsoft finds itself competing > > "not against another company, but against a > > grassroots movement," said Paul Dain, director of > > application development at Emeryville, Calif.- > > based Wirestone, a technology services company. > > > > . . . Microsoft has also criticized the General > > Public License (GPL) that governs the heart of > > Linux. Under this license, changes to the Linux > > core, or kernel, must also be governed by the GPL. > > The license means that if a company changes the > > kernel, it must publish the changes and can't keep > > them proprietary if it plans to distribute the > > code externally. . . > > > > Microsoft's open-source attacks come at a time > > when the company has been putting the pricing > > squeeze on customers. In early May, Microsoft > > revamped software licensing, raising upgrades > > between 33 percent and 107 percent, according to > > Gartner. A large percentage of Microsoft business > > customers could in fact be compelled to upgrade to > > Office XP before Oct. 1 or pay a heftier purchase > > price later on. > > > > The action "will encourage--'force' may be a more > > accurate term--customers to upgrade much sooner > > than they had otherwise planned," Gillen noted in > > the IDC report. "Once the honeymoon period runs > > out in October 2001, the only way to 'upgrade' > > from a product that is not considered to be > > current technology is to buy a brand-new full > > license.'" > > > > This could make open-source Linux's GPL more > > attractive to some customers feeling trapped by > > the price hike, Gillen said. "Offering this form > > of 'upgrade protection' may motivate some users to > > seriously consider alternatives to Microsoft > > technology." . . . > > > > > >What is surprising is that the US Department of Justice > >allowed Microsoft to place so many provisions in the > >agreement that can be used to undermine the free software > >movement. Note for example that under J.1 and J.2 of the > >proposed final order, Microsoft can withhold technical > >information from third parties on the grounds that Microsoft > >does not certify the "authenticity and viability of its > >business," while at the same time it is describing the > >licensing system for Linux as a "cancer" that threatens the > >demise of both the intellectual property rights system and > >the future of research and development. > > > >The agreement provides Microsoft with a rich set of > >strategies to undermine the development of free software, > >which depends upon the free sharing of technical information > >with the general public, taking advantage of the collective > >intelligence of users of software, who share ideas on > >improvements in the code. If Microsoft can tightly control > >access to technical information under a court approved plan, > >or charge fees, and use its monopoly power over the client > >space to migrate users to proprietary interfaces, it will > >harm the development of key alternatives, and lead to a less > >contestable and less competitive platform, with more > >consumer lock-in, and more consumer harm, as Microsoft > >continues to hike up its prices for its monopoly products. > > > >Problems with the term and the enforcement mechanism > > > >Another core concern with the proposed final order concerns > >the term of the agreement and the enforcement mechanisms. > >We believe a five-to-seven year term is artificially brief, > >considering that this case has already been litigated in one > >form or another since 1994, and the fact that Microsoft's > >dominance in the client OS market is stronger today than it > >has ever been, and it has yet to face a significant > >competitive threat in the client OS market. An artificial > >end will give Microsoft yet another incentive to delay, > >meeting each new problem with an endless round of evasions > >and creative methods of circumventing the pro-competitive > >aspects of the agreement. Only if Microsoft believes it > >will have to come to terms with its obligations will it > >modify its strategy of anticompetitive abuses. > > > >Even within the brief period of the term of the agreement, > >Microsoft has too much room to co-opt the enforcement > >effort. Microsoft, despite having been found to be a law > >breaker by the courts, is given the right to select one > >member of the three members of the Technical Committee, who > >in turn gets a voice in selecting the third member. The > >committee is gagged, and sworn to secrecy, denying the > >public any information on Microsoft's compliance with the > >agreement, and will be paid by Microsoft, working inside > >Microsoft's headquarters. The public won't know if this > >committee spends its time playing golf with Microsoft > >executives, or investigating Microsoft's anticompetitive > >activities. Its ability to interview Microsoft employees > >will be extremely limited by the provisions that give > >Microsoft the opportunity to insist on having its lawyers > >present. One would be hard pressed to imagine an > >enforcement mechanism that would do less to make Microsoft > >accountable, which is probably why Microsoft has accepted > >its terms of reference. > > > >In its 1984 agreement with the European Commission, IBM was > >required to affirmatively resolve compatibility issues > >raised by its competitors, and the EC staff had annual > >meetings with IBM to review its progress in resolve > >disputes. The EC reserved the right to revisit its > >enforcement action on IBM if it was not satisfied with IBM's > >conduct. > > > >The court could require that the Department of Justice > >itself or some truly independent parties appoint the members > >of the TC, and give the TC real investigative powers, take > >them off Microsoft's payroll, and give them staff and the > >authority to inform the public of progress in resolving > >compliance problems, including for example an annual report > >that could include information on past complaints, as well > >as suggestions for modifications of the order that may be > >warranted by Microsoft's conduct. The TC could be given > >real enforcement powers, such as the power to levy fines on > >Microsoft. The level of fines that would serve as a > >deterrent for cash rich Microsoft would be difficult to > >fathom, but one might make these fines deter more by > >directing the money to be paid into trust funds that would > >fund the development of free software, an endeavor that > >Microsoft has indicated it strongly opposes as a threat to > >its own monopoly. This would give Microsoft a much greater > >incentive to abide by the agreement. > > > >Failure to address Ill Gotten Gains > > > >Completely missing from the proposed final order is anything > >that would make Microsoft pay for its past misdeeds, and > >this is an omission that must be remedied. Microsoft is > >hardly a first time offender, and has never shown remorse > >for its conduct, choosing instead to repeatedly attack the > >motives and character of officers of the government and > >members of the judiciary. > > > >Microsoft has profited richly from the maintenance of its > >monopoly. On September 30, 2001, Microsoft reported cash > >and short-term investments of $36.2 billion, up from $31.6 > >billion the previous quarter -- an accumulation of more than > >$1.5 billion per month. > > > >It is astounding that Microsoft would face only a "sin no > >more" edict from a court, after its long and tortured > >history of evasion of antitrust enforcement and its > >extraordinary embrace of anticompetitive practices -- > >practices recognized as illegal by all members of the DC > >Circuit court. The court has a wide range of options that > >would address the most egregious of Microsoft's past > >misdeeds. For example, even if the court decided to forgo > >the break-up of the Windows and Office parts of the company, > >it could require more targeted divestitures, such as > >divestitures of its browser technology and media player > >technologies, denying Microsoft the fruits of its illegal > >conduct, and it could require affirmative support for rival > >middleware products that it illegally acted to sabotage. > >Instead the proposed order permits Microsoft to consolidate > >the benefits from past misdeeds, while preparing for a weak > >oversight body tasked with monitoring future misdeeds only. > >What kind of a signal does this send to the public and to > >other large corporate law breakers? That economic crimes > >pay! > > > >Please consider these and other criticisms of the settlement > >proposal, and avoid if possible yet another weak ending to a > >Microsoft antitrust case. Better to send this unchastened > >monopoly juggernaut a sterner message. > > > > > >Sincerely, > > > > > > > >Ralph Nader James Love > > > > > >Cc: Stanley Sporkin, Judge Thomas Penfield Jackson, Anne K. > >Bingaman, Joel I. Klein > >_______________________________ > >1 http://www.suntimes.com/output/tech/cst-fin-micro01.html > >"Microsoft CEO takes launch break with the Sun-Times," > >Chicago Sun Times, June 1, 2001. > > > > > >-- > >Ed Craig [EMAIL PROTECTED] > >Taxi (I need an income) GNU/Linux (I can afford a Free OS) > >Think this through with me, let me know your mind... Hunter/Garcia > > > > > -- Ed Craig [EMAIL PROTECTED] Taxi (I need an income) GNU/Linux (I can afford a Free OS) Think this through with me, let me know your mind... Hunter/Garcia
