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www/philosophy ms-doj-tunney.html
|
From: |
Yavor Doganov |
|
Subject: |
www/philosophy ms-doj-tunney.html |
|
Date: |
Sun, 20 May 2007 11:29:24 +0000 |
CVSROOT: /web/www
Module name: www
Changes by: Yavor Doganov <yavor> 07/05/20 11:29:24
Modified files:
philosophy : ms-doj-tunney.html
Log message:
Added the footer.
CVSWeb URLs:
http://web.cvs.savannah.gnu.org/viewcvs/www/philosophy/ms-doj-tunney.html?cvsroot=www&r1=1.7&r2=1.8
Patches:
Index: ms-doj-tunney.html
===================================================================
RCS file: /web/www/www/philosophy/ms-doj-tunney.html,v
retrieving revision 1.7
retrieving revision 1.8
diff -u -b -r1.7 -r1.8
--- ms-doj-tunney.html 28 Apr 2007 14:30:04 -0000 1.7
+++ ms-doj-tunney.html 20 May 2007 11:29:03 -0000 1.8
@@ -21,12 +21,12 @@
<p>I am Professor of Law at Columbia University Law School in New
York, and General Counsel (<i>pro bono publico</i>) of the Free
- Software Foundation, a non-profit §501(c)(3) corporation
- organized under the laws of the Commonwealth of Massachusetts,
- with its headquarters in Boston. I make this statement under the
- provisions of 15 U.S.C. § 16(d) concerning the Proposed Revised
- Final Judgment (hereinafter ``the Settlement'') in <i>United
- States v. Microsoft Corp</i>.</p>
+ Software Foundation, a non-profit §501(c)(3) corporation organized
+ under the laws of the Commonwealth of Massachusetts, with its
+ headquarters in Boston. I make this statement under the provisions
+ of 15 U.S.C. § 16(d) concerning the Proposed Revised Final Judgment
+ (hereinafter “the Settlement”) in <i>United States
+ v. Microsoft Corp</i>.</p>
<p>The remedies sought to be effected in the Settlement are, in
their broad outline, appropriate and reasonable measures for the
@@ -41,22 +41,22 @@
details one-sidedly favorable to the Defendant's goal of
continuing its illegal monopoly.</p>
- <p>Defendant--in the interest of continuing unabated its illegal
- monopoly--has artfully drafted certain clauses of the Settlement
- so as to hobble potential competition, giving the appearance of
- affirmatively assisting to undo its wrong, but covertly assisting
- instead in its continuance.</p>
+ <p>Defendant—in the interest of continuing unabated its
+ illegal monopoly—has artfully drafted certain clauses of the
+ Settlement so as to hobble potential competition, giving the
+ appearance of affirmatively assisting to undo its wrong, but
+ covertly assisting instead in its continuance.</p>
<p>The District Court found that the Defendant had illegally
maintained a monopoly in the market for Intel-compatible PC
- operating systems. (Findings of Fact, November 19, 1999, ¶19.)
- The mechanism of that monopolization, the court found, was the
- attempt to establish exclusive control of ``application program
- interfaces'' (``APIs'') to which applications developers resort
- for operating system services, so as to prevent the possibility
- of ``cross-platform'' development threatening Defendant's
- operating systems monopoly. (Findings of Fact, ¶80 and
- <i>passim</i>.)</p>
+ operating systems. (Findings of Fact, November 19, 1999, ¶19.) The
+ mechanism of that monopolization, the court found, was the attempt
+ to establish exclusive control of “application program
+ interfaces” (“APIs”) to which applications
+ developers resort for operating system services, so as to prevent
+ the possibility of “cross-platform” development
+ threatening Defendant's operating systems monopoly. (Findings of
+ Fact, ¶80 and <i>passim</i>.)</p>
<p>The Settlement accordingly makes appropriate provision to
require Microsoft to provide access to full and complete
@@ -74,38 +74,38 @@
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
+ IAPs, ICPs, and OEMs, for the sole purpose of interoperating with
+ a Windows Operating System Product, via the Microsoft Developer
+ Network (“MSDN”) or similar mechanisms, the APIs and
related Documentation that are used by Microsoft Middleware to
interoperate with a Windows Operating System Product. (emphasis
added)
</p>
</blockquote>
- <p>The ``sole purpose'' requirement means that Defendant does not
- have to make any such API information available to developers of
- software whose purpose it is to make competing Intel-compatible
- PC operating systems. Only those who make programs that
- interoperate with Windows Operating Systems Products may receive
- such information. Under § III(I)(3), an applications developer
- who has received licensed information concerning Defendant's APIs
- could be prohibiting from sharing that information with a maker
- of a competing Intel-compatible PC operating system, for the
- purpose of interoperating with that competing product. Under
+ <p>The “sole purpose” requirement means that Defendant
+ does not have to make any such API information available to
+ developers of software whose purpose it is to make competing
+ Intel-compatible PC operating systems. Only those who make programs
+ that interoperate with Windows Operating Systems Products may
+ receive such information. Under § III(I)(3), an applications
+ developer who has received licensed information concerning
+ Defendant's APIs could be prohibiting from sharing that information
+ with a maker of a competing Intel-compatible PC operating system,
+ for the purpose of interoperating with that competing product. Under
§III(I)(2), if a potential competitor in the market for
Intel-compatible PC operating systems also makes applications
- products, it can even be prohibited from using licensed
- information it receives in order to make those applications
- interoperate with Defendant's products also interoperate with its
- own competing operating system. What should be a provision
- requiring Defendant to share information with potential
- competitors in the monopolized market turns out, after
- Defendant's careful manipulation, to be a provision for sharing
- information ``solely'' with people other than competitors in the
- monopolized market. The same language has been inserted into
- §III(E), thus similarly perverting the intention of the
- Settlement with respect to Communications Protocols.</p>
+ products, it can even be prohibited from using licensed information
+ it receives in order to make those applications interoperate with
+ Defendant's products also interoperate with its own competing
+ operating system. What should be a provision requiring Defendant to
+ share information with potential competitors in the monopolized
+ market turns out, after Defendant's careful manipulation, to be a
+ provision for sharing information “solely” with people
+ other than competitors in the monopolized market. The same language
+ has been inserted into §III(E), thus similarly perverting the
+ intention of the Settlement with respect to Communications
+ Protocols.</p>
<p>Defendant has not merely engaged in this undertaking with a
goal to the exclusion of potential future competitors from the
@@ -117,39 +117,39 @@
<p>Defendant's most significant present challenger in the
Intel-compatible PC operating systems market is the collection of
- ``free software,'' which is free in the sense of freedom, not
- necessarily in price: thousands of programs written
+ “free software,” which is free in the sense of freedom,
+ not necessarily in price: thousands of programs written
collaboratively by individuals and organizations throughout the
- world, and made available under license terms that allow everyone
- to freely use, copy, modify and redistribute all the program
- code. That free software, most of it licensed under the terms of
- the Free Software Foundation's GNU General Public License (``the
- GPL'') represents both an operating system, known as GNU, and an
- enormous corpus of applications programs that can run on almost
+ world, and made available under license terms that allow everyone to
+ freely use, copy, modify and redistribute all the program code. That
+ free software, most of it licensed under the terms of the Free
+ Software Foundation's GNU General Public License (“the
+ GPL”) represents both an operating system, known as GNU, and
+ an enormous corpus of applications programs that can run on almost
all existing architectures of digital computers, including
- Intel-compatible PCs. Through one such free software component,
- an operating system ``kernel'' called Linux, written by thousands
- of individuals and distributed under the GPL, the GNU operating
- system can execute on Intel-compatible PC's, and by combining
- Linux with other free software, GNU can perform all the functions
- performed by Windows. Non-Microsoft Middleware can execute on
- Intel-compatible PCs equipped with components of GNU and Linux.
- Intel-compatible PCs so equipped currently account for more than
- 30% of the installed server base in the United States, according
- to independent industry obsevers.</p>
-
- <p>The District Court found that ``by itself, Linux's open-source
- development model shows no signs of liberating that operating
- system from the cycle of consumer preferences and developer
- incentives that, when fueled by Windows' enormous reservoir of
- applications, prevents non-Microsoft operating systems from
- competing.'' (Findings of Fact, November 5, 1999, ¶50.)
- (referring, confusingly, to the combination of GNU, Linux, and
- other programs simply as ``Linux.'') The District Court correctly
- found that in order to compete effectively with Defendant in the
- desktop operating systems market for Intel-compatible PCs,
- systems equipped with the free software operating system should
- be able to interoperate with ``the enormous reservoir'' of
+ Intel-compatible PCs. Through one such free software component, an
+ operating system “kernel” called Linux, written by
+ thousands of individuals and distributed under the GPL, the GNU
+ operating system can execute on Intel-compatible PC's, and by
+ combining Linux with other free software, GNU can perform all the
+ functions performed by Windows. Non-Microsoft Middleware can execute
+ on Intel-compatible PCs equipped with components of GNU and Linux.
+ Intel-compatible PCs so equipped currently account for more than 30%
+ of the installed server base in the United States, according to
+ independent industry obsevers.</p>
+
+ <p>The District Court found that “by itself, Linux's
+ open-source development model shows no signs of liberating that
+ operating system from the cycle of consumer preferences and
+ developer incentives that, when fueled by Windows' enormous
+ reservoir of applications, prevents non-Microsoft operating systems
+ from competing.” (Findings of Fact, November 5, 1999, ¶50.)
+ (referring, confusingly, to the combination of GNU, Linux, and other
+ programs simply as “Linux.”) The District Court
+ correctly found that in order to compete effectively with Defendant
+ in the desktop operating systems market for Intel-compatible PCs,
+ systems equipped with the free software operating system should be
+ able to interoperate with “the enormous reservoir” of
Windows applications.</p>
<p>There is no inherent barrier to such interoperation, only an
@@ -183,73 +183,71 @@
either Windows Operating System Products or applications written
to interoperate with Windows Operating System Products.</p>
- <p>For the same reason, Defendant's attempt to continue denying
- the free software development community access to its APIs
- through the imposition of royalty requirements, in §III(I)(1),
- should be removed. As the District Court recognized, free
- software development means that everyone in the world has access,
- without payment of royalties or prohibition of redistribution, to
- the ``source code'' of the software. All APIs and other
- interfaces are fully available at all times to anyone who wants
- to interoperate with the existing programs. This, and the ability
- to reuse existing program code in new programs without payment of
- royalties or license fees, permits vast numbers of interoperable,
- high-quality programs to be written by a mixture of volunteers
- and professional project developers for free distribution. By
- authorizing Defendant to engage in non-reciprocity by charging
- royalties for the same information about its programs, thus
- purposefully ousting volunteer developers, and by prohibiting
- ``sublicensing,'' thus precluding profit-making developers from
- seeking interoperability with volunteers, the Settlement is
- craftily perverted into a mechanism whereby Defendant can
- continue to withhold API information so as to preclude the
- operations of potential competitors. The Settlement should be
- modified so that §III(I)(1) requires reciprocity, by precluding
- the imposition of royalties on developers who make their own APIs
- fully available without payment of royalties or license fees, and
- so that §III(I)(3) precludes limitation on sublicensing, and
- requires Defendant to release API information on terms reciprocal
- to those on which competitors make their own API information
- available.</p>
+ <p>For the same reason, Defendant's attempt to continue denying the
+ free software development community access to its APIs through the
+ imposition of royalty requirements, in §III(I)(1), should be
+ removed. As the District Court recognized, free software development
+ means that everyone in the world has access, without payment of
+ royalties or prohibition of redistribution, to the “source
+ code” of the software. All APIs and other interfaces are fully
+ available at all times to anyone who wants to interoperate with the
+ existing programs. This, and the ability to reuse existing program
+ code in new programs without payment of royalties or license fees,
+ permits vast numbers of interoperable, high-quality programs to be
+ written by a mixture of volunteers and professional project
+ developers for free distribution. By authorizing Defendant to engage
+ in non-reciprocity by charging royalties for the same information
+ about its programs, thus purposefully ousting volunteer developers,
+ and by prohibiting “sublicensing,” thus precluding
+ profit-making developers from seeking interoperability with
+ volunteers, the Settlement is craftily perverted into a mechanism
+ whereby Defendant can continue to withhold API information so as to
+ preclude the operations of potential competitors. The Settlement
+ should be modified so that §III(I)(1) requires reciprocity, by
+ precluding the imposition of royalties on developers who make their
+ own APIs fully available without payment of royalties or license
+ fees, and so that §III(I)(3) precludes limitation on sublicensing,
+ and requires Defendant to release API information on terms
+ reciprocal to those on which competitors make their own API
+ information available.</p>
<p>In one additional provision Defendant has attempted to subvert
the intention of the Settlement in order to preclude effective
competition by the Intel-compatible free software operating
system. Under § III(J)(1), Defendant may refuse to disclose
- ``portions of APIs or Documentation or portions or layers of
+ “portions of APIs or Documentation or portions or layers of
Communications Protocols the disclosure of which would compromise
- the security of anti-piracy, anti-virus, software licensing,
- digital rights management, encryption or authentication systems,
- including without limitation, keys, authorization tokens or
- enforcement criteria.'' This provision is so indefinite that
- Defendant can be expected to argue that all APIs and
- Communications Protocols connected with the security and
- authentication aspects of electronic commerce (including
- especially ``without limitation'' keys and authorization tokens,
- which are the basic building blocks of all electronic commerce
- systems) can be kept secret. At present, all such protocols and
- APIs are public, which is appropriate because--as computer
- security experts would testify if, as it should, the District
- Court seeks evidentiary supplementation under 15 U.S.C.
- 16(f)(1)--security is not attained in the computer communications
- field by the use of secret protocols, but rather by the use of
- scientifically-refereed and fully public protocols, whose
+ the security of anti-piracy, anti-virus, software licensing, digital
+ rights management, encryption or authentication systems, including
+ without limitation, keys, authorization tokens or enforcement
+ criteria.” This provision is so indefinite that Defendant can
+ be expected to argue that all APIs and Communications Protocols
+ connected with the security and authentication aspects of electronic
+ commerce (including especially “without limitation” keys
+ and authorization tokens, which are the basic building blocks of all
+ electronic commerce systems) can be kept secret. At present, all
+ such protocols and APIs are public, which is appropriate
+ because—as computer security experts would testify if, as it
+ should, the District Court seeks evidentiary supplementation under
+ 15 U.S.C. 16(f)(1)—security is not attained in the computer
+ communications field by the use of secret protocols, but rather by
+ the use of scientifically-refereed and fully public protocols, whose
security has been tested by full exposure in the scientific and
engineering communities. If this provision were enforced as
- currently drafted, Defendant could implement new private
- protocols, extending or replacing the existing public protocols
- of electronic commerce, and then use its monopoly position to
- exclude the free software operating system from use of that de
- facto industry standard embodied in its new unpublicized APIs and
- Protocols. Defendant then goes further in § III(J)(2), according
- to itself the right to establish criteria of ``business
- viability'' without which it may deny access to APIs. Considering
- that its primary competition results from a development community
- led by non-profit organizations and relying heavily on
- non-commercial and volunteer developers, one can only conclude
- that Defendant is once again seeking the appearance of
- cooperation with the rule of law, while preparing by chicane to
- deny its injured competitors their just remedy.</p>
+ currently drafted, Defendant could implement new private protocols,
+ extending or replacing the existing public protocols of electronic
+ commerce, and then use its monopoly position to exclude the free
+ software operating system from use of that de facto industry
+ standard embodied in its new unpublicized APIs and
+ Protocols. Defendant then goes further in § III(J)(2), according to
+ itself the right to establish criteria of “business
+ viability” without which it may deny access to
+ APIs. Considering that its primary competition results from a
+ development community led by non-profit organizations and relying
+ heavily on non-commercial and volunteer developers, one can only
+ conclude that Defendant is once again seeking the appearance of
+ cooperation with the rule of law, while preparing by chicane to deny
+ its injured competitors their just remedy.</p>
<p>The Free Software Foundation not only authors and distributes
the GNU General Public License, and in other ways facilitates the
@@ -270,24 +268,47 @@
<p>Very truly yours,<br />
Eben Moglen</p>
- <p>
- Copyright © 2002 Free Software Foundation
- <br />
- Verbatim copying and distribution of this entire article is
- permitted in any medium without royalty provided this notice is
- preserved.
- </p>
+</div>
- <p>
- Updated:
- <!-- timestamp start -->
- $Date: 2007/04/28 14:30:04 $
- <!-- timestamp end -->
- </p>
+<!--#include virtual="/server/footer.html" -->
+<div id="footer">
+
+<p>
+Please send FSF & GNU inquiries to
+<a href="mailto:address@hidden";><em>address@hidden</em></a>.
+There are also <a href="/contact/">other ways to contact</a>
+the FSF.
+<br />
+Please send broken links and other corrections or suggestions to
+<a href="mailto:address@hidden";><em>address@hidden</em></a>.
+</p>
+
+<p>
+Please see the
+<a href="/server/standards/README.translations">Translations
+README</a> for information on coordinating and submitting
+translations of this article.
+</p>
+
+<p>
+Copyright © 2002 Free Software Foundation, Inc.,
+</p>
+<address>51 Franklin St, Fifth Floor, Boston, MA 02110, USA</address>
+<p>Verbatim copying and distribution of this entire article is
+permitted in any medium without royalty provided this notice is
+preserved.
+</p>
+
+<p>
+Updated:
+<!-- timestamp start -->
+$Date: 2007/05/20 11:29:03 $
+<!-- timestamp end -->
+</p>
</div>
<div id="translations">
- <h4>Translations of this page</h4>
+<h4>Translations of this page</h4>
<!-- Please keep this list alphabetical, and in the original -->
<!-- language if possible, otherwise default to English -->
@@ -302,13 +323,14 @@
<!-- Please also check you have the 2 letter language code right versus -->
<!-- http://www.w3.org/WAI/ER/IG/ert/iso639.htm -->
- <ul class="translations-list">
- <li><a href="/philosophy/ms-doj-tunney.html">English</a></li>
- <li><a href="/philosophy/ms-doj-tunney.fr.html">Français</a></li>
- </ul>
+<ul class="translations-list">
+<!-- English -->
+<li><a href="/philosophy/ms-doj-tunney.html">English</a> [en]</li>
+<!-- French -->
+<li><a
href="/philosophy/ms-doj-tunney.fr.html">Français</a> [fr]</li>
+</ul>
</div>
</div>
-</div>
</body>
</html>
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