[Top][All Lists]
[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
www/philosophy ms-doj-tunney.html
|
From: |
Joakim Olsson |
|
Subject: |
www/philosophy ms-doj-tunney.html |
|
Date: |
Mon, 26 Mar 2007 13:44:09 +0000 |
CVSROOT: /web/www
Module name: www
Changes by: Joakim Olsson <jocke> 07/03/26 13:44:09
Modified files:
philosophy : ms-doj-tunney.html
Log message:
Upgraded to XHTML.
CVSWeb URLs:
http://web.cvs.savannah.gnu.org/viewcvs/www/philosophy/ms-doj-tunney.html?cvsroot=www&r1=1.3&r2=1.4
Patches:
Index: ms-doj-tunney.html
===================================================================
RCS file: /web/www/www/philosophy/ms-doj-tunney.html,v
retrieving revision 1.3
retrieving revision 1.4
diff -u -b -r1.3 -r1.4
--- ms-doj-tunney.html 26 Mar 2007 13:41:22 -0000 1.3
+++ ms-doj-tunney.html 26 Mar 2007 13:44:03 -0000 1.4
@@ -1,363 +1,333 @@
-<!DOCTYPE html PUBLIC "-//W3C//DTD HTML 3.2 Final//EN">
-
+<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN"
+ "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd";>
<!--Converted with LaTeX2HTML 99.2beta6 (1.42)
original version by: Nikos Drakos, CBLU, University of Leeds
* revised and updated by: Marcus Hennecke, Ross Moore, Herb Swan
* with significant contributions from:
Jens Lippmann, Marek Rouchal, Martin Wilck and others -->
-<HTML>
-<HEAD>
-<TITLE>FSF Statement in Response to Proposed Revised Final Judgment in
- Microsoft vs. United States</TITLE>
+
+<html xmlns="http://www.w3.org/1999/xhtml";>
+<head>
+ <title>FSF Statement in Response to Proposed Revised Final
+ Judgment in Microsoft vs. United States</title>
<meta http-equiv="Content-Type" content=
"text/html; charset=utf-8" />
-<META HTTP-EQUIV="Keywords"
- CONTENT="GNU, FSF, Free Software Foundation, Linux, general, public, license,
gpl, general public license, freedom, software, power, rights, tunney,
microsoft, API">
-<META HTTP-EQUIV="Description" CONTENT="">
-<LINK REV="made" HREF="mailto:address@hidden";>
-
-<META NAME="Generator" CONTENT="LaTeX2HTML v99.2beta6">
-<META HTTP-EQUIV="Content-Style-Type" CONTENT="text/css">
-
-</HEAD>
-
-<BODY BGCOLOR="#FFFFFF" TEXT="#000000" LINK="#1F00FF" ALINK="#FF0000"
VLINK="#9900DD">
-
-<h2>FSF Statement in Response to Proposed Revised Final Judgment in
- Microsoft vs. United States</h2>
-<p>
-
-<A HREF="/graphics/philosophicalgnu.html">
-<IMG SRC="/graphics/philosophical-gnu-sm.jpg"
- ALT=" [image of a Philosophical Gnu] "
- WIDTH="160" HEIGHT="200"></A>
-
-
-[
-<!-- Please keep this list alphabetical -->
-<!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
- <A HREF="/philosophy/ms-doj-tunney.html">English</A>
-| <A HREF="/philosophy/ms-doj-tunney.fr.html">French</A>
-<!-- | A HREF="/boilerplate.LG.html" LANGUAGE /A -->
-<!-- Please keep this list alphabetical -->
-<!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
-]
-
-<P align=right>January 28, 2002
-<P>
-Renata B. Hesse
-<BR>
-Antitrust Division
-<BR>
-U.S. Department of Justice
-<BR>
-601 D Street NW
-<BR>
-Suite 1200
-<BR>
-Washington, DC 20530-0001
-<P>Dear Ms Hesse,
-
-<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>
-The remedies sought to be effected in the Settlement are, in their
-broad outline, appropriate and reasonable measures for the abatement
-of the illegal conduct proven by the United States at trial. The goal
-of such remedies is to require that Defendant affirmatively assist the
-restoration of competition in the market in which the Defendant has
-been shown to have illegally maintained a monopoly in violation of 15
-U.S.C. §2. The remedies embodied in the Settlement would
-substantially achieve that goal, appropriately furthering the
-Government's pursuit of the public interest, if the Settlement were
-amended to rectify certain details one-sidedly favorable to the
-Defendant's goal of continuing its illegal monopoly.
-
-<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>
-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>
-The Settlement accordingly makes appropriate provision to require
-Microsoft to provide access to full and complete technical information
-about its APIs on non-discriminatory terms, so as to prevent
-Defendant's prior conduct in erecting artificial and illegal barriers
-to entry to the monopolized market.
-
-<P>
-But the precise terms of the Settlement create a series of artful
-technical loopholes vitiating the primary intention.
-
-<P>
-Section III(D) provides that:
-
-<P>
-<BLOCKQUOTE>
-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, <I>for the sole purpose of interoperating with a Windows Operating
-System Product</I>, 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)
-</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 §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>
-Defendant has not merely engaged in this undertaking with a goal to
-the exclusion of potential future competitors from the monopolized
-market. In the teeth of the evidence, long after having been proved
-to have behaved with exaggerated contempt for the antitrust laws,
-Defendant is attempting in the very Judgment delivered against it to
-exclude from the market its most vigorous current competitor.
-
-<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 collaboratively by
-individuals and organizations throughout the world, and made available
-under license terms that allow everyone to freely use, copy, modify
-and redistribute all the program code. That free software, most of it
-licensed under the terms of the Free Software Foundation's GNU General
-Public License (``the GPL'') represents both an operating system,
-known as GNU, and an enormous corpus of applications programs that can
-run on almost all existing architectures of digital computers,
-including Intel-compatible PCs. Through one such free software
-component, an operating system ``kernel'' called Linux, written by
-thousands of individuals and distributed under the GPL, the GNU
-operating system can execute on Intel-compatible PC's, and by
-combining Linux with other free software, GNU can perform all the
-functions performed by Windows. Non-Microsoft Middleware can execute
-on Intel-compatible PCs equipped with components of GNU and Linux.
-Intel-compatible PCs so equipped currently account for more than 30%
-of the installed server base in the United States, according to
-independent industry obsevers.
-
-<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>
-There is no inherent barrier to such interoperation, only an
-artificial barrier illegally erected by Defendant. If Defendant were
-required to release information concerning its APIs to the developers
-of free software, GNU, Linux, the X windowing system, the WINE Windows
-emulator, and other relevant free software could interoperate directly
-with all applications that have been developed for Windows. Anyone
-could execute Windows applications programs bought from any developer
-on Intel-compatible PC's equipped with the competing free software
-operating system. And because, as the District Court found, the cost
-structure of free software is very much lower than Defendant's, the
-competing operating system product is and would continue to be
-available at nominal prices. (Findings of Fact, November 5, 1999, ¶
-50.)
-
-<P>
-That would be too effective a form of competition, from the
-Defendant's point of view. For this reason, Defendant has included in
-the Settlement the terms that exclude from API documentation precisely
-those to whom it would be most logically addressed: potential
-competitors seeking access to the monopolized market. If the
-Settlement were enforced according to its intention, the result would
-be immediate and vigorous competition between Defendant and the
-parties against whom, the District Court found, Defendant was
-illegally maintaining a barrier. The Settlement should be amended to
-level that barrier, which the current language inserted by Defendant
-artfully maintains. The language of §§III(D) and III(E) should be
-amended to require Defendant to release timely and accurate API
-information to all parties seeking to interoperate programs with
-either Windows Operating System Products or applications written to
-interoperate with Windows Operating System Products.
-
-<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>
-In one additional provision Defendant has attempted to subvert the
-intention of the Settlement in order to preclude effective competition
-by the Intel-compatible free software operating system. Under §
-III(J)(1), Defendant may refuse to disclose ``portions of APIs or
-Documentation or portions or layers of Communications Protocols the
-disclosure of which would compromise the security of anti-piracy,
-anti-virus, software licensing, digital rights management, encryption
-or authentication systems, including without limitation, keys,
-authorization tokens or enforcement criteria.'' This provision is so
-indefinite that Defendant can be expected to argue that all APIs and
-Communications Protocols connected with the security and
-authentication aspects of electronic commerce (including especially
-``without limitation'' keys and authorization tokens, which are the
-basic building blocks of all electronic commerce systems) can be kept
-secret. At present, all such protocols and APIs are public, which is
-appropriate 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>
-The Free Software Foundation not only authors and distributes the GNU
-General Public License, and in other ways facilitates the making of
-free software by others, it also manufactures and distributes free
-software products of its own, particularly the GNU operating system,
-and sells compilations of its own and others' free software. The
-Foundation sustains specific injury from the violations set forth in
-the complaint that are not remedied by (and indeed are specifically
-excluded from) the Settlement. The Foundation and the other free
-software developers with whom it acts are the single most significant
-competitor to the Defendant in the monopolized market, and the
-adoption of the Settlement as drafted, with its terms so carefully
-designed by Defendant to preclude its effective competition, would be
-a travesty. We urge that the Settlement be amended as we have
-described.
-
-<P>
-Very truly yours,
-<br>Eben Moglen
-<P>
-
-<hr>
-
-Copyright © 2002 Free Software Foundation
-
-<p>
-
-Verbatim copying and distribution of this entire article is permitted
-without royalty in any medium, provided the copyright notice and this
-notice is preserved.
-
-<HR>
-
-[
-<!-- Please keep this list alphabetical -->
-<!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
- <A HREF="/philosophy/ms-doj-tunney.html">English</A>
-| <A HREF="/philosophy/ms-doj-tunney.fr.html">French</A>
-<!-- | A HREF="/boilerplate.LG.html" LANGUAGE /A -->
-<!-- Please keep this list alphabetical -->
-<!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
-]
-
-<hr>
-
-
-<P>
-Return to <A HREF="/home.html">GNU's home page</A>.
-<P>
-
-Please send FSF & GNU inquiries & questions to
-
-<A HREF="mailto:address@hidden";><EM>address@hidden</EM></A>.
-There are also <A HREF="/home.html#ContactInfo">other ways to
-contact</A> the FSF.
-<P>
-
-Please send comments on these web pages to
-
-<A HREF="mailto:address@hidden";><EM>address@hidden</EM></A>,
-send other questions to
-<A HREF="mailto:address@hidden";><EM>address@hidden</EM></A>.
-<P>
-Updated:
-<!-- timestamp start -->
-$Date: 2007/03/26 13:41:22 $ $Author: jocke $
-<!-- timestamp end -->
-<HR>
-
-</BODY>
-</HTML>
-
+ <meta http-equiv="Keywords" content=
+ "GNU, FSF, Free Software Foundation, Linux, general, public, license, gpl,
general public license, freedom, software, power, rights, tunney, microsoft,
API" />
+ <meta http-equiv="Description" content="" />
+ <link rev="made" href="mailto:address@hidden"; />
+ <meta name="Generator" content="LaTeX2HTML v99.2beta6" />
+ <meta http-equiv="Content-Style-Type" content="text/css" />
+</head>
+
+<body bgcolor="#FFFFFF" text="#000000" link="#1F00FF" alink=
+"#FF0000" vlink="#9900DD">
+ <h2>FSF Statement in Response to Proposed Revised Final Judgment
+ in Microsoft vs. United States</h2>
+
+ <p><a href="/graphics/philosophicalgnu.html"><img src=
+ "/graphics/philosophical-gnu-sm.jpg" alt=
+ " [image of a Philosophical Gnu] " width="160" height=
+ "200" /></a> [ <!-- Please keep this list alphabetical -->
+ <!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
+ <a href="/philosophy/ms-doj-tunney.html">English</a> | <a href=
+ "/philosophy/ms-doj-tunney.fr.html">French</a>
+ <!-- | A HREF="/boilerplate.LG.html" LANGUAGE /A -->
+ <!-- Please keep this list alphabetical -->
+ <!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
+ ]</p>
+
+ <p align="right">January 28, 2002</p>
+
+ <p>Renata B. Hesse<br />
+ Antitrust Division<br />
+ U.S. Department of Justice<br />
+ 601 D Street NW<br />
+ Suite 1200<br />
+ Washington, DC 20530-0001</p>
+
+ <p>Dear Ms Hesse,</p>
+
+ <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>
+
+ <p>The remedies sought to be effected in the Settlement are, in
+ their broad outline, appropriate and reasonable measures for the
+ abatement of the illegal conduct proven by the United States at
+ trial. The goal of such remedies is to require that Defendant
+ affirmatively assist the restoration of competition in the market
+ in which the Defendant has been shown to have illegally
+ maintained a monopoly in violation of 15 U.S.C. §2. The remedies
+ embodied in the Settlement would substantially achieve that goal,
+ appropriately furthering the Government's pursuit of the public
+ interest, if the Settlement were amended to rectify certain
+ details one-sidedly favorable to the Defendant's goal of
+ continuing its illegal monopoly.</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>
+
+ <p>The Settlement accordingly makes appropriate provision to
+ require Microsoft to provide access to full and complete
+ technical information about its APIs on non-discriminatory terms,
+ so as to prevent Defendant's prior conduct in erecting artificial
+ and illegal barriers to entry to the monopolized market.</p>
+
+ <p>But the precise terms of the Settlement create a series of
+ artful technical loopholes vitiating the primary intention.</p>
+
+ <p>Section III(D) provides that:</p>
+
+ <blockquote>
+ 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, <i>for the sole purpose of interoperating
+ with a Windows Operating System Product</i>, 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)
+ </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
+ §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>
+
+ <p>Defendant has not merely engaged in this undertaking with a
+ goal to the exclusion of potential future competitors from the
+ monopolized market. In the teeth of the evidence, long after
+ having been proved to have behaved with exaggerated contempt for
+ the antitrust laws, Defendant is attempting in the very Judgment
+ delivered against it to exclude from the market its most vigorous
+ current competitor.</p>
+
+ <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
+ collaboratively by individuals and organizations throughout the
+ world, and made available under license terms that allow everyone
+ to freely use, copy, modify and redistribute all the program
+ code. That free software, most of it licensed under the terms of
+ the Free Software Foundation's GNU General Public License (``the
+ GPL'') represents both an operating system, known as GNU, and an
+ enormous corpus of applications programs that can run on almost
+ all existing architectures of digital computers, including
+ Intel-compatible PCs. Through one such free software component,
+ an operating system ``kernel'' called Linux, written by thousands
+ of individuals and distributed under the GPL, the GNU operating
+ system can execute on Intel-compatible PC's, and by combining
+ Linux with other free software, GNU can perform all the functions
+ performed by Windows. Non-Microsoft Middleware can execute on
+ Intel-compatible PCs equipped with components of GNU and Linux.
+ Intel-compatible PCs so equipped currently account for more than
+ 30% of the installed server base in the United States, according
+ to independent industry 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
+ artificial barrier illegally erected by Defendant. If Defendant
+ were required to release information concerning its APIs to the
+ developers of free software, GNU, Linux, the X windowing system,
+ the WINE Windows emulator, and other relevant free software could
+ interoperate directly with all applications that have been
+ developed for Windows. Anyone could execute Windows applications
+ programs bought from any developer on Intel-compatible PC's
+ equipped with the competing free software operating system. And
+ because, as the District Court found, the cost structure of free
+ software is very much lower than Defendant's, the competing
+ operating system product is and would continue to be available at
+ nominal prices. (Findings of Fact, November 5, 1999, ¶ 50.)</p>
+
+ <p>That would be too effective a form of competition, from the
+ Defendant's point of view. For this reason, Defendant has
+ included in the Settlement the terms that exclude from API
+ documentation precisely those to whom it would be most logically
+ addressed: potential competitors seeking access to the
+ monopolized market. If the Settlement were enforced according to
+ its intention, the result would be immediate and vigorous
+ competition between Defendant and the parties against whom, the
+ District Court found, Defendant was illegally maintaining a
+ barrier. The Settlement should be amended to level that barrier,
+ which the current language inserted by Defendant artfully
+ maintains. The language of §§III(D) and III(E) should be amended
+ to require Defendant to release timely and accurate API
+ information to all parties seeking to interoperate programs with
+ either Windows Operating System Products or applications written
+ to interoperate with Windows Operating System Products.</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
+ 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
+ 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>
+
+ <p>The Free Software Foundation not only authors and distributes
+ the GNU General Public License, and in other ways facilitates the
+ making of free software by others, it also manufactures and
+ distributes free software products of its own, particularly the
+ GNU operating system, and sells compilations of its own and
+ others' free software. The Foundation sustains specific injury
+ from the violations set forth in the complaint that are not
+ remedied by (and indeed are specifically excluded from) the
+ Settlement. The Foundation and the other free software developers
+ with whom it acts are the single most significant competitor to
+ the Defendant in the monopolized market, and the adoption of the
+ Settlement as drafted, with its terms so carefully designed by
+ Defendant to preclude its effective competition, would be a
+ travesty. We urge that the Settlement be amended as we have
+ described.</p>
+
+ <p>Very truly yours,<br />
+ Eben Moglen</p>
+ <hr />
+ Copyright © 2002 Free Software Foundation
+
+ <p>Verbatim copying and distribution of this entire article is
+ permitted without royalty in any medium, provided the copyright
+ notice and this notice is preserved.</p>
+ <hr />
+ [ <!-- Please keep this list alphabetical -->
+ <!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
+ <a href="/philosophy/ms-doj-tunney.html">English</a> | <a href=
+ "/philosophy/ms-doj-tunney.fr.html">French</a>
+ <!-- | A HREF="/boilerplate.LG.html" LANGUAGE /A -->
+ <!-- Please keep this list alphabetical -->
+ <!-- PLEASE UPDATE THE LIST AT THE BOTTOM (OR TOP) OF THE PAGE TOO! -->
+ ]
+ <hr />
+
+ <p>Return to <a href="/home.html">GNU's home page</a>.</p>
+
+ <p>Please send FSF & GNU inquiries & questions to
+ <a href="mailto:address@hidden";><em>address@hidden</em></a>. There are
+ also <a href="/home.html#ContactInfo">other ways to contact</a>
+ the FSF.</p>
+
+ <p>Please send comments on these web pages to <a href=
+ "mailto:address@hidden";><em>address@hidden</em></a>, send
+ other questions to <a href=
+ "mailto:address@hidden";><em>address@hidden</em></a>.</p>
+
+ <p>Updated: <!-- timestamp start -->
+ $Date: 2007/03/26 13:44:03 $ $Author: jocke $
+ <!-- timestamp end --></p>
+ <hr />
+</body>
+</html>