Slashdot Mirror

Frequent Slashdot contributor Bennett Haselton's essay this week is about "A Tennessee man is arrested for possessing a picture of Miley Cyrus's face superimposed on a nude woman's body. In a survey that I posted on the Web, a majority of respondents said the man violated the law -- except for respondents who say they were good at math in school, who as a group answered the survey differently from everyone else." Continue on to see how.

On June 24, a Tennessee man was arrested for possessing photos that showed the faces of three underage girls, including Miley Cyrus, superimposed onto the nude bodies of adult women. Assistant District Attorney Dave Denny said of the arrest, "When you have the face of a small child affixed to a nude body of a mature woman, it's going to be the state's position that this is for sexual gratification and that this is simulated sexual activity." The phrase "simulated sexual activity" apparently refers to a Tennessee sex crimes law which states in part: "It is unlawful for any person to knowingly possess material that includes a minor engaged in simulated sexual activity that is patently offensive."

Assuming this is the crime that the D.A. plans to charge him with, to me it seems obvious that the defendant didn't violate the law as written. For one thing, if the nude women in the pictures were just standing there (and neither the article nor the D.A.'s statement suggests otherwise), then there was no "sexual activity" in the photos of any kind, real or simulated. But even if the nude adult women in the photos had been engaged in sexual activity (even just striking a mildly sexy pose), the law still would not apply, because the law requires an actual minor to actually be engaged in something, even if that "something" is simulated sexual activity. So if a video showed a real minor that appeared to be masturbating or having sex with someone in a manner that was "patently offensive", that could violate the law. (Hopefully the "patently offensive" clause would exclude artistic movies like The Tin Drum, although that defense has not always worked.) But if the girls' faces were simply cut and pasted onto the bodies of the women in the photos, then the minors in question were not "engaged in" anything. The D.A. appears to have confused "material that includes a minor engaged in simulated sexual activity" with "material that simulates a minor engaged in sexual activity". And the D.A.'s statement that "this is for sexual gratification and that this is simulated sexual activity" — clearly implying that the pictures are for sexual gratification and therefore this is "simulated sexual activity" — is ridiculous. The defendant probably used pictures of Miley with her clothes on for "sexual gratification" — does that make the photos "simulated sexual activity"? (Dave Denny's office did not respond to my request for comment.)

But I was more interested in a different question: What would people in a survey think about whether the defendant violated the law? And, would people who are good at math, answer the question differently from everyone else? And would those people answer the question differently from people who are good at, say, English composition?

That might seem like an odd twist to put on it. But if you can show that a certain answer correlates with mathematical ability, that indicates something special about that answer. And if you can show that that answer appeals to people with math skills, but not to people with English/writing/composition skills, then that indicates something interesting not just about that answer, but about mathematical ability as well, as opposed to writing ability. Whether that answer is "right" or "wrong" (or whether you think those terms are even meaningful for a legal opinion), it is a fact, not an opinion, that people with self-reported higher math skills are more likely to pick that as the correct choice.

By contrast, when the D.A. makes a public statement about the criminality of the defendant's actions, the implication is that we should give some weight to his statements because of his qualifications, such as being a member of the bar. But if we were to ask other bar members to decide independently of each other whether the defendant committed a crime, would they converge on the same answer? If not, then why should we listen to him, as opposed to someone else with the same credentials? When an expert cites their credentials in support of an opinion, if it's not true that other experts with the same credentials would back them up on that opinion, I don't think people realize the extent to which there is no there there.

So in the survey, I described the man's alleged actions and the Tennessee statute, and asked people if they thought he had violated the law. I also asked respondents to rate their math skills as "Excellent"/"Very good"/"Good"/"Fair"/"Poor" and to rate their English/composition skills as "Excellent"/"Very good"/"Good"/"Fair"/"Poor". The survey was posted on the Amazon Mechanical Turk site, where you can post "tasks" for people to complete in exchange for small payments of, say, 25 cents apiece. Some companies use this for grunt work (like hiring people to review user-submitted profile photos to make sure they don't contain nudity), but I use the site mainly to conduct surveys.

I think it's unlikely that the Mechanical Turk users are a representative cross-section of the population, but I use it more to find significant relative differences between demographic groups. If 60% of women on the site answer a question one way and 80% of men answer it the other way, that probably suggests that in a real cross-sectional survey of the population, men and women would largely disagree on the answer as well. (The alternative would be that the kind of men and women who use Mechanical Turk are predisposed to answer the question differently along gender lines in a way that average men and women are not, but that seems unlikely.)

For this survey, I offered users 25 cents apiece for completing this survey and collected 127 responses. The results in a nutshell:

1. About two-thirds of all respondents (85 out of 127) said that the man did violate the law.
2. However, among the respondents who rated their own math skills as "Excellent", only 44% (12 out of 27) said he violated the law, and 56% (15 out of 27) said that he did not. Out of all ten ability groupings (five different ability groupings for math, from "Excellent" to "Poor", and five for English), this was the only group where a majority said that the defendant didn't violate the statute.
3. Respondents who self-rated their English/composition skills as "Excellent", were also more likely than average to vote that the man did not violate the law, but a majority of them still voted that he did.

These results are significant at the 99% level, which you can check using an online statistical significance calculator. In other words, despite the modest sample size, the answers given by the respondents with self-rated "excellent" math skills are so starkly different from everyone else's, that there's less than a 1 in 100 chance that the difference is due to coincidence. Almost certainly, something about mathematical ability is correlated with a person's likelihood of giving the "not guilty" answer. (At this point I'm going to give in to my bias and hereinafter refer to that as the "right answer.")

Furthermore, while respondents with "excellent" English/composition skills were also more likely than average to get the right answer (a difference that is also significant at the 99% level, given the collected data), they were considerably less likely to do so, than the users with self-reported "excellent" math skills (again, significant at the 99% level). I tabulated all the responses.

If I could afford to pay a larger sample, I would investigate whether the effect of "excellent" English/composition skills disappears entirely when you control for math skills. In other words, it's possible that the people with excellent English/composition skills were more likely than average to get the right answer, but only insofar as their English/composition skills were correlated with excellent math ability — and maybe people with "excellent" English/composition skills, but only average math ability, score no better than the average respondents.

One thing that jumps out at me: Even though 44% of the 27 people with "excellent" math skills said the man did violate the law, when you look at the 58 people who self-reported "very good" math skills, 74% of them said he violated the law. This would appear to confound my original hypothesis that good math skills lead people to converge on the correct answer. But I suspect that many people with self-reported "very good" math grades were probably just good students who studied hard and did the practice problems and got good grades in math, but without necessarily having the insight that makes someone an "excellent" math student. Without that insight, there was no reason to expect them to be better than average at answering a question that has no resemblance to their textbook's practice problems.

In fact, I suspect that many of the people who self-reported their math skills as "excellent", and who still answered "yes" to the question of whether the man violated the law, probably fell into that studious-but-not-insightful category as well. It would be interesting to test whether if you required respondents to actually answer a math question — not a standard textbook question, but a tricky question that required people to demonstrate an understanding of what is actually going on — if the correlation between correctly answering that question, and "correctly" answering the legal question, is even stronger.

But what I think is even more important than the correlation of the correct answer with "excellent" math ability, was the significantly lower correlation of the correct answer with "excellent" English skills. I've been saying for years that you can use excellent prose to defend an illogical idea, or you can use poorly crafted prose to defend a good idea, and so if you care about the quality of an idea and its impact on the real world, you have to look at the substance of an argument, not the style. Economics professor Steven Landsburg writes in his forthcoming philosophy book The Big Questions,

The bane of a college professor's existence is the student who has been taught in a writing course that there is such a thing as good writing, independent of having something to say. Students turn in well-organized grammatically correct prose, with the occasional stylistic flourish in lieu of any logical argument, and don't understand why they've earned grades of zero.

I call such people "vocabulemics", who seem to think the purpose of a discussion is to vomit up as many SAT vocab prep words as possible, rather than to form a coherent point. I've tried, and I can't think of any coherent point that could be made in order to argue that the Miley photoshopper really did violate the Tennessee law.

If you're still unconvinced by the results of a survey of mathletes, consider that they do match up well with the comments provided to me by Mark Rasch, a lawyer and computer security specialist with Secure IT Experts and the former head of the Department of Justice Computer Crimes Unit:

First, an image of a minor engaged in simulated sexual activity is not the same as a simulated minor engaged in sexual activity... In other words, if you posed actual minors, nude, and made it look like they were having sex, it would be a crime, even though there was no "actual" sexual activity. In most other contexts, when the legislature says "simulated sexual activity" they mean real people engaged in what appears to be sex. The government is trying to apply this theory to real sex but simulated minors. I don't think that passes statutory muster.. its not what the statute prohibits... Under that rationale, if you had, for example, a picture of two dogs mating, and glued pictures of kids on the dogs faces, this would be "simulated sexual activity" but would not be prosecutable. Where do you draw the line? Under federal law, you typically draw the line at the use and posing of real kids.

Depending on how you look at it, you may think that this opinion from credentialed expert Mr. Rasch, vindicates the opinion of the math aficionados who voted that the defendant did not violate the law. I think it's the other way around — the fact that this answer was correlated in the survey responses with mathematical ability, vindicates the opinion of Mr. Rasch.

CWmike writes "Gregg Keizer reports that federal and state regulators have struck a deal with Microsoft under which any version of Windows released after May 2011 will not be subject to the scrutiny mandated by a 2002 antitrust settlement. As previously promised, however, Windows 7 will be put under the microscope. Yesterday, the DOJ filed documents (PDF) with US District Court Judge Colleen Kollar-Kotelly asking that she extend her oversight by at least 18 months, until May 12, 2011. Although Microsoft has consented to the extension — and acknowledged that the regulators can later ask for another 18 months — Kollar-Kotelly must approve the request."

dfdashh writes "A former Fannie Mae contractor has been indicted by a federal grand jury in Baltimore, MD for computer intrusion. He attempted to propagate a malicious script throughout the company's 4,000 servers. The DC Examiner has details of the incident: 'Had this malicious script executed, [Fannie Mae] engineers expect it would have caused millions of dollars of damage and reduced if not shutdown operations at [Fannie Mae] for at least one week. ... The virus was set to execute at 9 a.m. Jan. 31, first disabling Fannie Mae's computer monitoring system and then cutting all access to the company's 4,000 servers, Nye wrote. Anyone trying to log in would receive a message saying "Server Graveyard." From there, the virus would wipe out all Fannie Mae data, replacing it with zeros, Nye wrote. Finally, the virus would shut down the servers.'"

jamie writes "The politicization of Bush's Justice Department, which this week was officially determined to be illegal, has a funny side too. Sometime in 2005-2006, White House Liaison Jan Williams attended a seminar on LexisNexis searches, and wrote one herself. When she left, she passed it on to her successor Monica Goodling in an email. Justin Mason, author of SpamAssassin, is skeptical about its accuracy:

[First name of a candidate]! and pre/2 [last name of a candidate] w/7 bush or gore or republican! or democrat! or charg! or accus! or criticiz! or blam! or defend! or iran contra or clinton or spotted owl or florida recount or sex! or controvers! or racis! or fraud! or investigat! or bankrupt! or layoff! or downsiz! or PNTR or NAFTA or outsourc! or indict! or enron or kerry or iraq or wmd! or arrest! or intox! or fired or sex! or racis! or intox! or slur! or arrest! or fired or controvers! or abortion! or gay! or homosexual! or gun! or firearm!

Needless to say, when asked about it, Williams first said she didn't remember ever seeing it, then said she'd used an edited version just once. LexisNexis records show she used it, as shown, 25 times." Note that 'sex!' appears twice in the query. Must be VERY important.

An anonymous reader writes "The MPAA must be celebrating. According to the BitTorrent news site Slyck.com, the Department of Justice is proclaiming their first P2P criminal copyright conviction, against an Elite Torrents administrator. The press release notes, 'The jury was presented with evidence that Dove was an administrator of a small group of Elite Torrents members known as "Uploaders," who were responsible for supplying pirated content to the group. At sentencing, which is scheduled for Sept. 9, 2008, Dove faces a maximum sentence of 10 years in prison.'"

coondoggie writes "Until today, most Internet-based real-estate brokers were considered second-class citizens, and their clients were left in the cold. But perhaps that will change with today's news that the Department of Justice has reached a proposed settlement with the National Association of Realtors that requires NAR to let Internet-based residential real estate brokers compete with traditional brokers. NAR has agreed to be bound by a 10-year settlement, under whose terms NAR will repeal its anticompetitive policies and require affiliated multiple listing services to repeal their rules that were based on these policies." Here's the whole settlement document on the DoJ's site.

An anonymous reader writes "Wired is reporting that the FBI sought approval to use its custom spyware program, CIPAV, from the secretive Foreign Intelligence Surveillance Court in terrorism or spying investigations. Affidavits prepared for the court are among 3,000 pages of documents gathered, but not yet released, in response to a Freedom of Information Act request from Wired. The FBI hasn't answered any questions about its use of the CIPAV since the program's existence became widely known in July. The FISC is generally regarded as a rubber stamp; it approved over 4,000 surveillance requests in 2005 and 2006[PDF], rejecting none."

An anonymous reader writes "The Department of Justice's Office of Inspector General is reporting that the FBI has lackluster performance when it comes to tracking data lost on missing laptops. In a recent 44-month audit (ending in Sept. 2005), the FBI reported 160 lost or stolen machines. Of those, ten were confirmed to have sensitive info. A startling 51 of these machines had unknown information — in other words the FBI never knew what they lost. Some of these machines likely contained some of the most sensitive security information the FBI has, as there were several in the bunch that belonged to members of the Counterintelligence and Counterterrorism Divisions. But the FBI was never able to properly respond to these losses because someone didn't fill out the right paperwork. The OIG has a copy of the audit (pdf) for public consumption."

drDugan writes "The Washington Post is reporting the next phase of American progress authorizing intelligence agencies to spy on law-abiding citizens without oversight. Primarily, new legislation allows an 'intelligence exception' to the privacy act 'allowing the FBI and others to share information gathered about U.S. citizens with the Pentagon, CIA and other intelligence agencies, as long as the data is deemed to be related to foreign intelligence. Backers say the measure is needed to strengthen investigations into terrorism or weapons of mass destruction.'"

matthewg writes "According to the New York Times the federal government has developed an open-source medical records system. It was originally developed for the Department of Veterans Affairs, and doctors started obtaining it under FOIA requests. Some good information on the process of converting it from an internal project to a deployable system exists, and how its open nature has made the system better is available at the WorldVista site." From the article: "Medicare has not estimated what its software giveaway is worth. But Duncan Pringle, chief Vista technologist at Perot Systems, said that each doctor in a practice paid about $20,000 to $25,000 to get started with a commercial system, including costs of software, a license fee charged to each doctor, installation and servicing."

Andrew Burnes writes "A fellow Internet games journalist will shortly plead guilty in a Connecticut court room for being involved in the warez scene, following his apprehension in April as part of Operation Fastlink. Here is a slice of his email to various press and editorial professionals: 'I am very sorry for what I have done, and after I serve my sentence, I hope I will be able to continue my career in the game industry, and move on with my life. This last year has been incredibly hard for me emotionally, facing the consequences of my bad choices, and I am hopeful for your support, but I'll understand if you want nothing to do with me.'

mabu writes "The United States Attorney's Office for the Northern District of California announced that, roughly a year after his arrest, David Jeansonne pleaded guilty Tuesday to two criminal counts in a scheme that sent email to users of Microsoft's WebTV Internet service containing an attachment that, when opened, reprogrammed their computers to dial 9-1-1 without their knowledge. It still unclear what motivated this 43-year-old to launch such a bizarre worm."

mabu writes "The United States Attorney's Office for the Northern District of California announced that, roughly a year after his arrest, David Jeansonne pleaded guilty Tuesday to two criminal counts in a scheme that sent email to users of Microsoft's WebTV Internet service containing an attachment that, when opened, reprogrammed their computers to dial 9-1-1 without their knowledge. It still unclear what motivated this 43-year-old to launch such a bizarre worm."

DrJimbo writes "Groklaw has an explanatory article covering the Computer Fraud and Abuse Act (CFAA) in layman's terms. The article discusses legal precedents that might make it illegal to access much of the internet. The article is a response to a claim by SCO that IBM violated the CFAA by downloading GPL'ed software from SCO's public HTTP and FTP sites."

mbstone writes "The U.S. Court of Appeals for the D.C. Circuit has upheld [pdf] the settlement reached between Microsoft and the U.S. Justice Department in the antitrust case filed in 1998, beating back a challenge by Massachusetts, the only state that didn't settle. Many critics, of course, believe that Attorney General John Ashcroft took a dive on the case which was originally filed by former Clinton Administration Attorney General Janet Reno."

Seth Schoen writes "Caltech and Loyola Law School students will argue Friday over a scenario in which a student creates a distributed computing application to crack DRM systems, leading to DMCA criminal prosecution of everyone involved. Those in the Los Angeles area might enjoy attending the 5th annual "At the Crossroads" mock trial (free, Friday May 21 at Caltech in Pasadena). The case will have many realistic touches. A real Federal judge will hear it; the prosecution will be advised by L.A. Federal prosecutors and the defense by an EFF attorney. Expert testimony for the prosecution will be given by MPAA's Brad Hunt and for the defense by EFF's Seth Schoen."

Doomrat writes "As promised (see previous story), Operation FastLink has led to the arrests of 3 key members of the Fairlight group. NHTCU officers and local police executed search warrants and arrested three men at separate locations in Sheffield, Manchester and Belfast. Over 200 computers have been seized, along with 100 CD copiers. Raids were carried out in the UK, the U.S., Belgium, Denmark, France, Germany, Hungary, Israel, the Netherlands, Singapore and Sweden."

An anonymous reader writes "Beginning yesterday morning, law enforcement from 10 countries and the United States conducted over 120 searches worldwide to dismantle some of the most well-known and prolific online piracy organizations. Among the groups targeted by Operation Fastlink are well-known organizations such as Fairlight, Kalisto, Echelon, Class and Project X, all of which specialized in pirating computer games, and music release groups such as APC. The enforcement action announced today is expected to dismantle many of these international warez syndicates and significantly impact the illicit operations of others."

Karl Cocknozzle writes "European Union antitrust officials have dismissed as insufficient Microsoft's offer to settle their most recent antitrust problem in Europe. Spokespeople for the European Commission and Microsoft declined to comment on a report in today's Financial Times that Microsoft had offered to include rival media player software from Apple and Real Networks on a CD-ROM packaged with personal computers to help resolve the case. Previously, the EU had demanded that Microsoft either unbundle Windows Media Player, or also bundle rival media players with Windows. It appears that Microsoft might get more than a slap on the wrist this time around."

Cyphertube asks: "I'm wondering what rights an IT contractor has under the Americans with Disabilities Act in the US (or similar legislation in other countries). Can an employer get rid of you as an hourly contractor in situations they couldn't as a permanent employee, despite the fact that the reason they are getting rid of the employee is due to a disability?"

"Let me explain my situation. I was hired as an IT project manager to handle the implementation of 3rd-party software. While I had to write lots of documentation and gather requirements from plenty of people, my requirement to be in the office was in all reality not important for my job. As an hourly contractor, I was allowed to bill for hours worked from home.

Well, in October this year, I was diagnosed with leukemia. This, of course, made it difficult to work in the office during chemotherapy and with my weakened immune system, but they said that they would bring in a temporary employee and that I could likely work telecommuting. Under the ADA, this would be considered reasonable accommodation, since I can work, and they already provide such resources for other employees.

Unfortunately, this new employee they've brought in to replace me, also a contractor, is now sitting in my job that I had, despite my ability to work (I could have even returned to the office for two weeks). The project is way behind schedule, and I was just told that they can't bring me back because there's no budget, since they replaced me with this other guy.

I've heard that this is legal, and then from others that it clearly violates the ADA (since I'm a W-2 worker through a contracting agency and my replacement is from the same agency). Aside from a clear reason to remind everyone to get disability insurance, are there any ideas to what my legal standpoint would be?"

unassimilatible writes "Attorney General John Ashcroft said Thursday that law-enforcement agents had arrested 125 suspects in a crackdown on Internet crimes ranging from hacking and software piracy to credit card fraud and selling stolen goods over the Internet, according to Wired. The investigation, begun Oct. 1 and dubbed Operation Cyber Sweep, involved police from Ghana to Southern California and uncovered 125,000 victims who had lost more than $100 million. Seventy indictments to date have led to arrests or convictions of 125 people, with more expected as the probe continues. The cases range from a Virginia woman who sent fake e-mails to America Online customers asking them to update their credit card numbers to a disgruntled Philadelphia Phillies fan who hacked into computers nationwide and launched spam e-mails criticizing the baseball team. 'The information superhighway should be a conduit for communication, information and commerce, not an expressway for crime,' Ashcroft said."

bllfrnch writes "Mary Hodder, over at The Berkeley School of Journalism's bIPlog, reports that electronic voting bigwig Diebold has begun sending cease-and-desist letters to universities whose students are linking to hijacked internal company memos that elucidate the company's level of respect for citizens' right to vote. Particularly shocking is the line: "If voting could really change things, it would be illegal.""

SharkJumper writes "The Sci-Fi channel expects to file a lawsuit within the week against NASA. They are attempting to gain access under the Freedom of Information Act to classified documents concerning a 1965 UFO sighting in Kecksburg, Pennsylvania. The Department of Defense, Army, and Air Force are next on their list. Here's Sci-Fi's account of the story."

An anonymous reader submits: "A *very* interesting precedent here might get set here. A California man has been arrested by the FBI for sending spam spoofing the From: email address of several Philadelphia-area newspaper editors and writers. The charges relate to the damage caused by having the bounces sent back to the Philadelphia Inquirer and Daily News, with a total of more than 160,000 bounced emails. Maximum penalties: 471 years in federal prison, $117 million in fines." And not just arrested, either -- Reader red_dragon points to the indictment (PDF linked from this U.S. Attorney's Office release).

These answers are from the lawyers in the U.S. DoJ's Computer Crime and Intellectual Property Section (CCIPS) -- the people who prosecute criminal file-sharing cases. Michael O'Leary, Deputy Chief for Intellectual Property at the DoJ, submitted the answers, but other lawyers in the section worked with him to write them, all under the ground rules laid out in our 'Meet the DoJ's 'Anti-Piracy' Lawyers post last week.

INTRODUCTORY COMMENTS

Thank you all for posing such interesting questions. We have answered nine of the ten submitted questions below, but we are not in a position to answer number ten because it is specifically related to a civil case (that does not involve the Department of Justice). However, in an effort to give you your money's worth, we have answered two additional questions which you posed in the comments accompanying the original interview, but were not submitted to us by the Slashdot moderators.

1) What services for an open source copyright holder - by bwt
First, thank you doing this interview. Most people here take IP very seriously and want laws and law enforcement that do what the Constitution intended.

Contrary to what many lay-people believe, open source software relies (heavily) on copyright and the legal system that assures those rights. In fact, among Slashdot readers are a large number of people who own copyrights to open source software. My question is what services your organization offers in practice to "real people". Our community creates software whose quality competes with that of multi-billion dollar corporations, so we clearly have a significant interest in having our own rights as authors protected. We all have no doubt that if Jack Valenti finds a website selling pirated versions of his movies that law enforcement will descend upon the infringer with a fury comparable to that wielded against drug smugglers and violent criminals.

Few among us would really object to enforcing the law against such a clear violation, however, I cannot help but wonder if there is equity in the system. I wonder whether an individual author's rights as a copyright owner would be similary protected? For example, if substantial quantities of code that one of us has written ends up in a company's product in a way that clearly violates the terms of an open source licence, how would the infringed copyright holder go about seeking your services?

What policy governs your decision whether or not to act on behalf of a copyright owner when a complaint is raised? What assures that the heavy hand of the law protects an individual's rights with the same fury that it defends those of the RIAA or a major software corporation?

O'Leary:
Thanks for your question. The issues you raise are ones that we confront from time to time and we welcome the chance to address them here on Slashdot. In reviewing your question, and many that follow, it appears that some Slashdot readers feel that the Department of Justice only protects the IP rights of big corporations. That simply isn t the case. There is no doubt that large multi-national corporations are often victimized by piracy due in some measure to the popularity and pervasiveness of their products. But at the same time, there are also many others who are victimized, such as small mom and pop operations, and young developers trying to break into a crowded and competitive market. I imagine many Slashdot regulars fall into these categories.

In deciding whether or not to prosecute an intellectual property case, we undertake a thorough examination of a number of factors. These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences. Factors such as these, and not the identity of the victim, are the basis for prosecutorial decisions. We have made strong intellectual property rights enforcement a priority and we will continue to do so without regard to the size or market share of the victim(s).

The prosecutions we undertake do in fact benefit real people. If you look at the people and organizations who have been victimized by the defendants we prosecute, you will see that we enforce the law without regard to who the victims may be and we have protected the rights of victim companies of all sizes.

In one recent case, for example, we prosecuted individuals for pirating a significant amount of high-end application software. There were literally hundreds of victim companies, the vast majority of which were not large corporations. One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further. The earnings of small operations like this are all put back into the business, to defray research and development costs and support further development. They do not have the resources to employ investigators to track pirates or lawyers to vindicate their rights civilly. They simply have an idea and a product a product which was, in this case, pirated and distributed around the world.

In regard to open source products, depending upon the facts, open source developers may seek to enforce their legal rights civilly, or, in cases where there has been willful infringement and certain criminal thresholds have been met, criminal prosecution may also be warranted. At this time, we are unaware of any referrals to law enforcement for open source license violations. As for reporting potential criminal infringement to law enforcement, the best way to do that is to contact your local FBI office.

2) This won't be taken seriously, but... - by Maul
.... I find it extremely hard to believe that your division truthfully represents the "people" of this country. It seems that your job is to help mega-corporations make "examples" out of college students and others who are too poor to defend themselves.

Yes, sharing copyrighted music and films is a crime. However, I see no justification for the insane penalties associated with file sharing and priacy. It seems that companies can make up some absurd figure in the billions, claiming it to be actual damages, without any sort of proof they have really lost that much at all from file sharing.

Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than rapists and violent criminals who use weapons?

O'Leary:
Before answering your underlying question, which we do take seriously, let me address what has become a common misconception. The recent cases involving college students were civil suits brought by private parties, such as the Recording Industry Association of America (RIAA). The Department of Justice is not a party to these suits. We enforce our federal intellectual property laws through criminal prosecution, not through civil suits.

Your question argues that the current sentencing structure for criminal intellectual property crimes is too severe and is based upon damage amounts that cannot be supported. First, note that the federal sentencing structure is established by Congress and the United States Sentencing Commission. As federal prosecutors, we work within these guidelines. Second, the sentencing guidelines reflect the serious harm that is caused by piracy. In our answer to the first question above, we gave just one example of a small developer who has been harmed by piracy. That situation is not unique. The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

Further, deterrence is a significant element in criminal sentencing not just in IP crimes, but in all crimes. Until recently, many people believed that piracy was a consequence-free activity and that it did not harm anyone. The sentences that have been handed down in recent prosecutions have begun to change that impression, and will deter others from engaging in similar conduct.

By statute, a person convicted of one felony count of copyright infringement faces up to 5 years in prison (or 3 years, if convicted under the NET Act when the piracy was not done for commercial advantage or private financial gain). However, there are a number of factors that determine the actual criminal sentence a defendant receives, including the volume and retail value of pirated material involved, whether the defendant uploaded material to the Internet, and whether the defendant had a leadership role in a larger criminal organization. Also, a defendant's sentence may be reduced if, for example, he had a minor role in the criminal operation, or he accepts responsibility for his illegal conduct.

The single biggest factor in determining a sentence under the U.S. Sentencing Guidelines is the infringement amount attributable to the defendant. While your question correctly notes this, please understand that neither industry nor the government has the ability to dictate this amount. In determining the amount of damage, the United States must provide evidence of the number and value of the copyrighted works infringed by the defendant to the Probation Office and the court prior to sentencing. The United States must provide evidence to support its position such as evidence of the value of the pirated works infringed by the defendant, the number of times the pirated works were reproduced or distributed, or, in some instances, the amount of money the defendant earned from his illegal activity. At the same time, the defendant may introduce evidence to establish what he believes is the appropriate valuation for sentencing purposes. Neither the U.S. Probation Office, which ultimately recommends a sentencing range to the court in what is known as a pre-sentence report, nor the sentencing judge is bound by the government's claimed damage amount. The government's recommendation for a particular sentence is subject to multiple checks and balances. It is not simply the by-product of numbers offered by industry. We have to support and defend our position in a court of law which is the way it should be.

Finally, while people convicted of intellectual property crimes do face serious consequences for their actions, they are not treated more severely than violent criminals such as rapists. The vast majority of prosecutions of violent criminals take place at the state and local level, not the federal level, which is where DOJ s jurisdiction lies. However, in those instances where there are federal violent crimes, the penalties are more severe than those imposed for copyright infringement. For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

3) Question regarding the DMCA and copyright terms - by rhadamanthus
If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration? The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work. If the work is perpetually protected via this combination of law and technology, how can it be copyrighted legitimately, since the work will never *really* be able to join the public domain? This is analogous to trade secrets vs. patents, unless measures are taken to ensure the DRM encryption is removed once the copyright term is over. Or would that be illegal through the DMCA as well? The DMCA states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." The title referred to is title 17 of the US Code, which covers copyright. I can therefore assume that removing copyright protections on expired copyrights would not be against the law. However, the DMCA also forbids the selling of tools to circumvent the very same DRM. I find it hard to believe that the RIAA/MPAA would let these tools become available regardless of the user's intent and/or rights under copyright expiration rules. Any comments about this apparent paradox?

O'Leary:
I don t believe that the CBDTPA is under consideration in the current Congress, nor are we aware of other pending bills that would mandate the use of digital rights management systems. However, your question seems more focused on the DMCA, specifically the portions of the DMCA that govern anti-circumvention technologies, i.e. Section 1201 of Title 18. For purposes of answering this question, the term DMCA refers specifically to Section 1201.

The DMCA prohibits trafficking (which includes manufacture, sale, distribution, importation, etc.) in tools (i.e., technologies, products, services, devices, etc.) that:

(a) are primarily designed to circumvent,

(b) are primarily marketed for use in circumventing, or

(c) have limited commercially significant purpose or use other than circumventing,

either one of the following:

(1) a technological measure that effectively controls access to a work protected under this title [i.e., the Copyright Act] (see 18 U.S.C. Section) 1201(a)(2); or

(2) a technological measure that effectively protects a right of a copyright holder under this title (see Section 1201(b(1)).

The first type of control above will be referred to as an access control, the second as a copy control. In addition to the restrictions on trafficking, the DMCA also prohibits actual circumvention of access controls (see Sec. 1201(a)).

The DMCA s main purpose is to help protect the rights of copyright holders. However, the DMCA was also designed in part to protect and preserve the rights of people who use copyrighted works. First, the DMCA expressly states that it is not intended to affect limitations on copyright or defenses to infringement such as fair use. Second, the DMCA contains a number of exceptions and exemptions that, for example, allow in some circumstances reverse engineering, encryption research, and certain actions by libraries and certain educational institutions. Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls. As the district court in the Elcom case noted, Congress omitted a prohibition against circumventing copy controls specifically so that users could engage in fair use (and, presumably, to use works that enter the public domain). (See U.S. v. Elcom, Ltd., 203 F.Supp.2d 1111, 1020 (N.D.Cal. 2002)).

Your question deals with how the DMCA might affect works that have entered the public domain. As you know, copyright law grants copyright holders certain exclusive rights, such as the right to copy and distribute their work for a period of time. Currently, the length of the copyright term is the life of the author plus 70 years; for works made for hire, it is 95 years from first publication or 120 years from creation of the work (whichever comes first). After this term expires, works enter the public domain and are presumably available in some form that can be read, viewed, heard, etc., by the public.

While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them.

We have not encountered any criminal case that involved this specific issue. Indeed, we are not aware of a court case either civil or criminal that has addressed this issue directly (although the district court in the Remeirdes case - the 2600 magazine case - acknowledged this issue, but because it was not central to the case before it, the court declined to elaborate).

It is possible that the interplay between the DMCA and access to public domain works will be addressed through rule-making or legislation. The DMCA provides for a periodic review process by the Librarian of Congress, and the issue of circumvention of technological protections on public domain works was one of the issues raised in the most recent review session earlier this spring (See http://www.copyright.gov/1201/).

4) Going Native? - by Andy_R
Here in Britain, we recently shut down the governemental body that regulated our train services because they were tending to take the side of the small number of contact personnel at the train companies that they dealt with on a day to day basis rather than the side of the faceless multitiude of passengers who they only knew through a few angry mails.

Given that your department will (in the vast majority on cases) be working on behalf of a very very small number of copyright-holding organisations against potentially millions of nearly anonymous file sharers, how will you prevent this 'going native' phenomenon biasing your investigations in favour of people you having a close working relationship with, and how will you defend yourselves against the inevitable accusations that you have 'gone native' and are a 'private police force' for the copyright holders?

O'Leary:
You ask an excellent question: how do we, as federal prosecutors, ensure that we retain independent judgment throughout the prosecutorial process? The decision to bring any criminal prosecution is significant and has serious consequences. For this reason, although we work with victims frequently, we work diligently to preserve our independent prosecutorial decision-making authority.

As attorneys for the Department of Justice, our mission is to enforce the laws fully and fairly on behalf of the people of the United States. This is a responsibility we take very seriously. While we work with a wide range of victims, from large multi-national corporations to small mom and pop businesses, the ultimate responsibility for making prosecutorial decisions remains solely with us.

Throughout the criminal justice process, there are checks on how we exercise our authority, including the citizens of the grand jury (who can reject our allegations), judges (who can dismiss charges or rule evidence inadmissible), and ultimately the citizens on the trial jury (who can acquit the defendant). However, even though these checks and balances are in place, from our perspective, it is still our responsibility to maintain appropriate boundaries at all times.

As a result, we try always to exercise independent, unbiased prosecutorial judgment when reviewing cases referred to our office for prosecution. Although you may not hear about it, we frequently decide not to move forward with criminal charges even in instances where the victim wants us to do so. The public doesn't hear about the prosecutions that are declined, only those that go forward. The decision to prosecute or not is a decision based upon a full and independent evaluation of the facts, the evidence, and the law. By maintaining this standard, we work to preserve the integrity of the criminal justice process.

5) Background - by TrekkieGod
Given that as IP lawyers at CCIPS part of your responsibilities is not only enforcing current laws, but also "reviewing new policy proposals, legislation, or international agreements related to IP", I'd like to know something about your overall technical background.

A frequent gripe with the geeks here at Slashdot, myself included, is that apparently legislators are not sufficiently well informed to create IP laws, frequently proposing and enacting laws which either constrain individual rights in favor of protecting those of big corporations (like the DMCA), or are simply not effective, because they can never patch the frequently referred to "analog hole" which is always a required step for humans to get to the information.

Given that for ethical reasons, you may not give your honest opinion on said legislation since you are required to enforce them, I'd simply like to know if I can trust that you are sufficiently well-informed to give council on these ever emerging new IP legislations. Do you feel that you truly have sufficient technical experience as opposed to your obvious legal ones? Can you elaborate on what type of experience you feel helps to qualify you to truly understand the ramification of these legislations?

O'Leary:
Interesting question. While we are all lawyers at CCIPS, we come to our current positions from a wide range of backgrounds. We have attorneys who have policy and legislative experience. Other attorneys are former Assistant United States Attorneys with years of criminal trial experience. Others came from civil practice before joining the Criminal Division, and a number of us represented technology companies in private practice. Still others have substantial technical backgrounds apart from being lawyers. As a general rule, however, almost everyone in CCIPS is curious about technology and how it intersects with the law. Our interest in technology explains why so many of us are frequent Slashdot readers, and why working at CCIPS sparked our interest in the first place.

One of the biggest misconceptions we confront regularly is that because we are law enforcement we must be opposed to technological innovation. This is simply not the case. The benefits of technology are numerous. We support and enjoy them. Yet, just as law enforcement must conduct itself so as not to unduly limit innovation, so too must we respond when technology is misused for illegal purposes.

Because of our interest in technology and its effect on the laws we prosecute, the attorneys assigned to prosecute IP crimes spend time learning about new technologies as they are developed. This helps us not only keep pace with the latest innovations, but enhances our investigative and prosecutorial skills as well. As your question suggests, you can t determine how (or if) the law applies to technology unless you understand how the technology works. We learn a great deal about technology in the course of online investigations, many of which involve extremely sophisticated technology. We are also trained on an ongoing basis on various aspects of networks and technology in order to continue to develop and refine our skills. Finally, we draw upon the knowledge and perspective of technical experts from the investigative agencies as well as from the private sector.

All of these factors combine to give us a better perspective on the relationship between law and technology. We are frequently called upon to review and consider various legislative proposals. In instances where we are asked to comment on a proposal, we have the requisite technical and legal background necessary to provide a detailed and comprehensive analysis of the proposed legislation. We view providing this type of input as one of our core responsibilities, and we work very hard to stay in touch with emerging technologies for this very reason. Thanks for your question.

6) Terminology and newspeak - by kafka93
Given that from a legal standpoint (and, many would argue, an ethical one) there is a distinction between "copyright infringement"/IP violation and "theft", what views do you have on the regular and incorrect/misleading application of the latter term by such people as the RIAA and law enforcement? Such misuse of language seems disingenuous, and taints the arguments of those who might otherwise have valid points to make about the morality of misuse of intellectual property rights.

It seems that if there are ethical arguments against piracy and other forms of copyright misuse, those arguments can and should be made on their own merits without the introduction of psychological wordplay apparently designed to confuse the public and cloud the debate. Accordingly, what steps are being taken to clarify the correct terminology and to avoid jingoistic use of words like 'theft', 'thieves' and 'stealing' amongst law enforcement and elsewhere?

O'Leary:
You're correct that words are important, in particular as they apply to characterizations of specific conduct. As you suggest, people with differing views on intellectual property enforcement should be careful not to overstate their case, nor should they do the opposite in an effort to minimize the effects of their conduct.

Traditionally, theft involves taking something from another person without their permission. In short, you deprive that person of their property and they can no longer enjoy its use. Some have argued, particularly in the context of online or digital piracy, that infringement or misappropriation really doesn't deprive the victim of their product because it is merely being copied, so infringement or misappropriation is not truly theft.

As criminal prosecutors, we focus on the conduct, regardless of the label that might be applied. That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft.

In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real.

7) Fair Use - by El_Smack
I hear the term "Fair Use" bandied about all the time in these discussions. From a legal standpoint, does it exist? Do I have a right, that will stand up in a court of law, to make a copy of software/music/data for my own personal use? If I do, does making an "uncopy-able" product violate that right?

O'Leary:
Great question. The term fair use is frequently misunderstood, and with good reason. The short answer to your question is that fair use does exist. It is an important and longstanding aspect of our intellectual property rights regime. Fair use is a doctrine that holds that although copyright laws grant the creators of copyrighted works certain exclusive rights in their works, the law must simultaneously allow citizens to engage in a degree of copying (or other conduct that would otherwise be infringing in the absence of a fair use doctrine) to allow for such things as comment, criticism, scholarship, and news reporting.

The doctrine of fair use was originally adopted by judges ruling in early copyright cases. Ultimately, Congress incorporated the doctrine into the Copyright Act of 1976, where fair use is now codified at Section 107 of Title 17 of the U.S. Code. In creating section 107, Congress listed four factors to be considered in determining whether a use is fair or not:

(1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

These factors are essentially the same factors that had been used over the years by judges, and Congress's stated intent was to preserve the fair use doctrine as it had evolved. However, as many courts have pointed out over the years, whether something constitutes fair use is very fact-specific. It is difficult to craft a clear, bright-line rule that explains which particular uses of a work are fair use and which are infringement. In short, the exact parameters of fair use are often determined based on the facts of specific cases.

So yes, fair use does exist. Does it allow for some uses of copyrighted works that would otherwise be infringing in the absence of a fair use doctrine? Yes. Does fair use give a user a blanket license to infringe copyrighted works with impunity? No.

Fair use is among the many factors that prosecutors consider when determining whether or not to bring criminal charges. Having said that, however, fair use is not typically at issue in the cases we decide to bring as criminal prosecutions. Rarely do the facts that we would consider for prosecution give rise to a (sustainable) fair use argument by the defendant or defendants although we certainly hear them from time to time. As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

8) distinctions - by newsdee
Is a distinction made between different levels of IP infringement?

I imagine that, from a legal standpoint, there should be a different point of view between a student that copies one software for personal use and a blatant thief who makes money out of selling the same copied software.

However, this question has two assumptions:

- The student would not use the software if it was not available (i.e. it is not a lost sale)

- Both activities are infringing (i.e. this question is not seeking to justify the first case)

I think this question is especially relevant since there are reports that the RIAA is now prosecuting students for "infringements" that are mostly gray areas (i.e. the infringement does not seem proven beyond a reasonable doubt, at least to the public).

O'Leary:
Yes, there are distinctions made between different levels of infringement. Perhaps the most significant distinction is the difference between civil and criminal infringement. Historically, the vast majority of disputes about intellectual property rights enforcement have been dealt with in civil lawsuits, with the criminal law dealing with only a narrow subset of activity. Although there has been increased emphasis on criminal prosecution in recent years, it is still the case that most intellectual property enforcement is civil. The criminal copyright statutes don't allow anyone to be prosecuted unless he infringed a copy willfully, which is the most difficult type of intent to prove. The civil statutes, on the other hand, address infringement even if it was negligent or unintentional. Because we focus on the criminal IP laws, I will answer your question from that perspective.

There are two levels of criminal violations within the criminal copyright code. There are misdemeanors, which carry a prison term of one year or less. And there are felonies, which carry prison sentences of over one year (more on this below).

In general terms, infringement becomes a criminal matter (as opposed to civil) when it reaches a certain magnitude and when the conduct is willful. Within the criminal copyright statutes (17 U.S.C. sec. 506 and 18 U.S.C. sec. 2319) there are thresholds which must be met to trigger potential criminal sanctions. Simply put, these thresholds deal with the quantity and value of the works that are infringed.

Your question talks about the blatant thief who makes money out of selling copied software. This highlights another important area within the criminal law. The criminal statutes make a distinction between for-profit and not-for-profit piracy. Someone who is convicted of piracy for commercial advantage or private financial gain is subject to a felony penalty of up to 5 years in prison. By contrast, someone who infringes for reasons other than commercial advantage or private financial gain faces a maximum penalty of 3 years in prison (under the NET Act). Be aware, however, that the term private financial gain can encompass situations where pirated products are distributed or reproduced for anything of value, including other pirated products. In those instances, defendants will be subject to the 5 year penalty.

As we discussed earlier, there are a number of variables that determine a defendant s sentence in any particular case. However, these are the general distinctions made among various types of conduct which would be considered criminal in nature.

Finally, your question references cases being brought by the RIAA. As we've noted above, the cases filed by the RIAA are private civil actions which do not involve the Department of Justice. Also, you referenced the "beyond a reasonable doubt" standard within your question. In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.

9) "... under penalty of perjury ..." - by OWJones
In copyright law, 17 USC Section 512(c)(3)(vi) states that all notifications of copyright violations sent to ISPs must contain

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(emphasis mine).

Do you know of any cases in which the sender of an invalid takedown notice -- such as the RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher -- has been successfully charged with perjury? Or do you allow copyright holders some "fudge factor" with the perjury aspect, since

1. It was an mp3.
2. It did have the name of an RIAA-represented artist in the title, and
3. It was at a university.

If copyright holders are allowed leeway, can we expect to see similarly loose definitions of perjury creep into the legal system? If the police are looking for a "Caucasian male, age 50-60, bald, 200-225 pounds," can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?

I realize that's more than one question and that they're slightly loaded, but I'd appreciate any comments on how seriously the DoJ takes the perjury clause of the takedown notices.

O'Leary:
Your question raises an important point. We feel strongly that everyone should comply with the requirements of all laws. Legal process under the DMCA or any other provision of law should be undertaken with the utmost care and good faith. Failure to do so undermines the credibility and effectiveness of our legal system.

Having said that, it appears your interpretation of the language in 512 (c)(3)(vi) is in error. The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

We are unaware of any prosecutions for violating this provision of the DMCA at this time.

10) Daniel Peng's "MiniNapster" - by Pxtl
What is your opinion on the case of Daniel Peng? The internet at large is angry at the treatment of Peng by the courts - many consider sites like the one Peng created to be "common carriers" - that is, all Peng's site did was list the files other users had chosen to put on the academic network to be freely downloaded. Was it his responsibility to ensure that all the files listed on the academic network (which, unlike Napster, was a network he did not operate or design) were legitamate? While he may have been personally involved in pirating files (that is, he may have personally downloaded files to his computer) that was not the focus of the lawsuit. Peng was placed into a legal battle where he had no chance at victory, and as such had to settle out of court. What is your opinion on this case, and ones like it?

O'Leary:
The litigation involving Daniel Peng was a civil matter between private parties. I don't know any more about the case than what has appeared in the public press and other media. Therefore, as I mentioned at the outset, we simply cannot comment. However, as promised, we answered two additional questions which were not submitted to us by Slashdot moderators to make up for not answering this one.

11) Copy protection? - By Jucius Maximus
I am aware that companies spend large sums of money on holograms, authenticity cards, product activation schemes, anti-CD-copying schemes, serial numbers and so on. When investigating alleged copyright infringement, do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning? Does copyright infringement go down when companies put up roadblocks like these or do the infringers get away with it nontheless?

O'Leary:
Copyright owners have indeed implemented a variety of methods for deterring unauthorized copying or counterfeiting of their works. Software makers in particular often apply very elaborate authentication features to the packaging and media for their software in order to distinguish genuine copies from counterfeits.

In our experience, it appears that many of these methods have been effective at discouraging infringement and counterfeiting. For example, the use of unique authentication codes or serial numbers seems to have helped discourage some copying of software. The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs. And the advanced authentication methods used on software packaging (like holograms, watermarks, and edge-to-edge printing) have made the task of manufacturing counterfeits more difficult. In fact, some counterfeiters appear to have given up trying to beat the software makers at the authentication game, and instead now simply try to steal genuine packaging materials to package their counterfeit discs.
Have these copy-protection or authentication features eliminated infringement and counterfeiting? No, but they have had a deterrent effect.

12) Foreign Agencies - By mitd
As a Canadian I am curious as to the co-operation you receive (if any) from agencies outside the US? Specifically Canada but also internationally in general.

O'Leary:
Great question. For too long, people have believed that geographic boundaries shield them from the consequences of piracy. Over the past few years, we have been working to change that belief. The Department recognizes that in order to deal with piracy effectively, we must respond globally. This is true regarding both online piracy and traditional hard goods piracy cases.

CCIPS has made international enforcement a priority. We have a number of tools, both formal and informal, for working internationally, including Mutual Legal Assistance Treaty Requests and Letters Rogatory. We are also able to employ the network of legal attaches stationed at U.S. Embassies around the world to help strengthen relationships with our foreign law enforcement counterparts and help build strong international cases. In general, international cooperation on intellectual property cases is becoming more effective each year. We do work on intellectual property cases with Canada and will continue to do so in the future. We are also currently working on cases in over a half a dozen other foreign nations. Over the past two years we have worked closely with investigators and prosecutors overseas in order to strengthen our own domestic prosecutions as well as support foreign prosecutions. We have traveled overseas to assist our foreign counter-parts and have welcomed foreign agents to the U.S. to learn more about evidence we might have to support their prosecutions.

Our office is currently working with the United States Attorney for the Eastern District of Virginia on the extradition from Australia of Hew Raymond Griffiths, a.k.a. bandido, the former leader of various warez groups, including DrinkOrDie and RiSC. In March 2003, a Federal Grand Jury sitting in the Eastern District of Virginia indicted Griffiths on charges of conspiracy to violate U.S. copyright laws; his extradition is being sought to face these charges. This is the first extradition of a foreign national for online copyright piracy.

Although working internationally is time and resource intensive, it is essential to effective enforcement of intellectual property rights, and we are committed to addressing piracy wherever it occurs.

Addendum:

Thanks again to everyone for submitting your questions. There were some great ones, and we regret that we cannot answer all of them. Thanks also to Slashdot for the opportunity to discuss these important issues. We look forward to additional opportunities to work with members of the online community to ensure that intellectual property rights are sufficiently protected.

This week's Slashdot interview guests are the 'point people' for Federal criminal actions against online file-traders and software misapproprators. They know some Slashdot readers may have little sympathy for what they do all day. Be that as it may, this is a great chance to understand what it's like on the enforcement side of the intellectual property coin. We have a special set of 'ground rules' for this interview (below) supplied by the Department of Justice that we must ask you to read before submitting questions. From the DoJ (verbatim):

Answering your questions will be the attorneys assigned to prosecute intellectual property crimes in the Department of Justice's Computer Crime and Intellectual Property Section (CCIPS). Spearheading this group will be Michael O'Leary, Deputy Chief for Intellectual Property who oversees the day-to-day intellectual property enforcement operations. Here is some background on CCIPS and their intellectual property efforts:

CCIPS began as a small group within DOJ in 1991, with a focus on network crimes (e.g. hacking into machines, destructive worms and viruses, denial of service attacks), intellectual property crimes (e.g. software piracy and counterfeiting), and electronic evidence issues. CCIPS is part of the Criminal Division of DOJ (which, as its name suggests, is primarily responsible for enforcement of federal criminal laws). Today, the section has grown to almost 40 lawyers, of whom about a dozen focus on IP issues. (Please keep in mind that it will be the IP prosecutors answering questions here, so save your non-IP-related hacking or electronic evidence issues for another time.)

What do the attorneys assigned to IP at CCIPS do? The IP prosecutors in the Section are responsible for establishing and enforcing the Department's overall intellectual property rights enforcement program, including the prosecution of federal intellectual property crimes. In some instances, CCIPS handles the prosecution of intellectual property cases. More frequently they work closely with prosecutors in the U.S. Attorneys' Offices around the country who handle the vast majority of federal criminal prosecutions, both IP and non-IP. They also provide training on IP issues for prosecutors and law enforcement, both domestically and internationally. Other responsibilities include reviewing new policy proposals, legislation, or international agreements related to IP, and providing advice to other government agencies or components of DOJ. The prosecutors also work closely with foreign law enforcement counterparts to coordinate IP enforcement activities around the globe.

While they are committed to fully answering your questions, as Department of Justice attorneys, they are subject to various Federal laws, Department of Justice rules, and ethics rules. They are not permitted to provide legal advice to individual private citizens. This means that there is no attorney-client relationship between CCIPS and Slashdot readers, users, or moderators (and answering questions on Slashdot should not be interpreted as creating one). Therefore, they will not answer questions seeking legal advice. Finally, they cannot discuss ongoing cases, investigations or related hypotheticals.

To learn more about the Department of Justice or the Computer Crime and Intellectual Property Section, visit the following web sites, www.usdoj.gov and www.cybercrime.gov.

An anonymous reader writes "In a written report card on how well Microsoft is complying with its 2001 antitrust deal with state and federal prosecutors, Justice Department lawyers said they might need the court to force Microsoft to act more quickly." The DOJ's court filing is online if you want to wade through it.

robl writes "If the NYTimes article is correct then somewhere around 1 in 6 Americans apparently are unindicted felons. In the eyes of the public file swapping is as morally wrong as speeding on the NJ Turnpike. The rest of the article talks about the RIAA's carrot/stick/education approach and how they may find themselves entering into negotiations for some forms of file sharing. Also the EFF will be running ads in Rolling Stone next month asking if enthusiasts are tired of being treated like criminals."

scubacuda writes "Using a honeypot to detect and surveil computer intruders might put you on the working end of federal wiretapping beef, or even get you sued by the next hacker that sticks his nose in the trap, according this (old) Security Focus article. Honeypots could be federal criminal law calls "interception of communications", a felony that carries up to five years in prison. Because the Federal Wiretap Act has civil provisions, as well as criminal, there's even a chance that a hacker could file a lawsuit against a honeypot operator that doesn't have their legal ducks in a row. "It would take chutzpah," said Richard Salgado, senior counsel for the Department of Justice's computer crime unit, "But there's a case where an accused kidnapper who was using a cloned cell phone sued for the interception of the cell phone conversations... And he won.""

leabre writes " Yahoo! Intellectual Property News is reporting that a small video distributer is being sued (U.S. Supreme Court) over reusing a work (WWII documentary) whose copyright had expired in the 70s, without giving credit to 20th Century Fox on the now public-domain work. What's more, Fox wants the courts to expand the copyright (which it let fall into the public domain more than 20 years ago) so they can recover damages from the distributer... " Read on for more (including several links) about this case. favorite quote: 'Justice Sandra Day O'Connor told Cendali that her client let the copyright lapse for the documentary, in the 1970s, and now wants the court to expand copyright protection so it can recover damages from Dastar. "The defense replies 'It was in the public domain,' O'Connor said. 'Of course they had a right to copy it.'" The outcome of this should be watched closely as it has the potential to further distort our fair use rights. There are more links on EFF , Dept. of Justice, and the Supreme court filing (appeal)[pdf]."

scubacuda writes "According to Law.com, Robert Gumson, a blind man who uses a program that converts website content into speech, is suing Southwest Airlines (with the help of Miami Beach, FL-based Access Now) for its website being incompatible with his screen-reader program. The case has been filed under the Americans with Disabilities Act under the untested legal theory that ADA provisions on the accessibility of public accommodations to the disabled apply to Internet Web sites just as they do to brick-and-mortar facilities like movie theaters and department stores. There have been previous lawsuits alleging that the ADA applies to the Internet, but all have settled without a ruling on the merits: 1999 the National Federation of the Blind sued AOL alleging its service was inaccessible to blind users (AOL agreed to make its sites compatible with screen reader technology); over the past two years, Access Now has sued Barnes & Noble and Claire's Stores for maintaining Web sites that allegedly violated the ADA (both settled)."

Lots of newsbits about copyright infringement today - let's mash them all together with some egg whites and breadcrumbs and see what we get. marklyon writes "The DOJ announced that they are planning to prosecute filesharers under the The No Electronic Theft ("NET") Act. John Malcolm, a deputy assistant attorney general, made the pronouncement at the Progress and Freedom Foundation's annual technology and politics summit Tuesday. Cnet has extended coverage." Reader M_Talon writes "According to this article on ZDNET the RIAA is using one of the DMCA's more nasty clauses...the right to subpoena an ISP for a suspected pirate's personal information. They want to force Verizon to reveal the customer's information, and Verizon is refusing on the grounds that the pirated material isn't on their servers." Reader MattW writes "Apparently some theaters are consenting to run anti-piracy ads before movies. After all, these are not a bunch of fat cats we're talking about -- piracy now threatens the livelihood of the rank and file workers of Hollywood. After all, the movie studios are having a terrible year, right?" Finally, the Washington Post (probably one of the last articles we post from their site, as they go registration-required) discovers spoofed files on Gnutella, and public radio is reporting that the RIAA will drop their suit against listen4ever.com, since it's, uh, gone.

Slashback tonight with some good news about Linux Weekly News, an annual update for interested picnic-goers, a followup on Neonapster, and a few words of caution on Microsoft's approach to code disclosure. Read on below for the details.

Look at the nice horse they left. babbage writes "As part of ongoing antitrust settlement arrangements, Microsoft has 'opened' the source code to some of their protocol implementation source code. Go ahead and read the license -- but do keep an eye on the NDA you have to agree to first. If you find an NDA to be an objectionable first step -- and I'll admit, I haven't read the license because I don't agree to the NDA terms -- then speak up about it. The Department of Justice is accepting public comments from industry professionals about the new licensing terms. There is a real concern that such pseudo-open licensing could effectively scuttle development efforts on projects like Samba & Mono, but we need to get open access to the license in order to figure out what the risks are. If you have anything to contribute, now is the time to speak up to the DOJ."

Bring your own herring. Bill Kendrick writes: "From the folks who brought you the immensely popular "Linux10" event, comes Picn*x11, a picnic/barbecue celebrating 11 years of the Linux operating system. It's going to be held in Sunnyvale again, the Saturday after LinuxWorld Expo. So go RSVP now, and get your Picn*x11 t-shirt! (Proceeds go to EFF)"

With enough eyeballs many programs seem shallow, too. TheMMaster writes "Neonapster seems to have GPL'd their software, you can download the source here, not that I am terribly happy with what happened, but at least this seems to have been settled out of court ;) of course... it is still a cheap cdex rip off ;)"

LWN is good reading. Keck writes "We all shed a tear for Linux Weekly News a little too soon maybe?

Yes, we know we said there would be no LWN.net Weekly Edition this time around, but, in the end, it was worth the trouble to put together a mini version. So here it is; with luck, the full Weekly will be back on August 15. "

Anonymous Coward writes "Kevin Poulson writes in an article in SecurityFocus that in an early draft of the White House's "National Strategy to Secure Cyberspace", the DOJ proposes that the US enact European style 'data retention' laws, which force ISPs to log and retain all of your email headers, as well as your Web browsing history." Nothing worse for the DOJ to be upstaged by Europe in oppressive lawmaking, they must feel like they're losing their edge. Update: 06/19 23:04 GMT by M : The SecurityFocus article has been updated with this note, saying that the U.S. denies having any plans for data-retention laws. Guess we'll have to wait until the plan is released to see.

jonerik writes: "Today's New York Times has this article which debunks at least part of NARAS president Michael Greene's much-publicized speech at last week's Grammy Awards ceremony in which Greene claimed that he had hired three students to download a whopping 6,000 songs "from easily accessible Web sites" over two days. Leaving aside for a moment Greene's bizarre admission on national TV that he'd hired three students (at least one of whom, Numair Faraz, is a minor) to break the law (the No Electronic Theft Act), Faraz has been interviewed by the Times, saying that they spent more like three days on the project and that the other two students (both unnamed, though both are apparently attending U.C.L.A.) barely used P2P file-sharing programs at all. Instead, they used AOL's popular Instant Messenger to receive song files from friends."

Robb Timlin asks: "Ok, so I'm checking over the DOJ's response to the public comments, and I notice they reference mine, among others, in Paragraph 149 (footnote 162): '149. Section III.B is limited to the twenty OEMs with the highest worldwide volume of licenses of Windows Operating System Products. Some commentors criticize this limitation, arguing that it leaves Microsoft free to retaliate against smaller OEMs, including regional "white box" OEMs.(162)' Problem is, I never said anything like that in my comment! Now it could be a simple error, or it could be deliberate misrepresentation of what I had to say (my criticism of Section III.B of the RPFJ centered on allowing MS to provide rewards to OEMs who toe the line, in lieu of retaliating against those that don't). A friend of mine urged me to bring this to the attention of somebody official, but who?"

"Anybody have any idea as to whom I should contact (if anyone)? The DOJ? State AGs still litigating? The judge's office? (E-mail addresses would be greatly appreciated - there's not much time before the hearing!) I haven't much of a clue when it comes to legal stuff; all I know is the RPFJ stinks and I did my part to fight it, and now I see my effort misrepresented.

By the way, anybody else here who commented might want to check if they're cited in the DOJ's response, and if it actually addresses what you said and not something completely different. If it's just one instance, it could be an honest error. But a pattern of misrepresentation would be a very serious matter indeed.

Thanks!

Robb Timlin asks: "Ok, so I'm checking over the DOJ's response to the public comments, and I notice they reference mine, among others, in Paragraph 149 (footnote 162): '149. Section III.B is limited to the twenty OEMs with the highest worldwide volume of licenses of Windows Operating System Products. Some commentors criticize this limitation, arguing that it leaves Microsoft free to retaliate against smaller OEMs, including regional "white box" OEMs.(162)' Problem is, I never said anything like that in my comment! Now it could be a simple error, or it could be deliberate misrepresentation of what I had to say (my criticism of Section III.B of the RPFJ centered on allowing MS to provide rewards to OEMs who toe the line, in lieu of retaliating against those that don't). A friend of mine urged me to bring this to the attention of somebody official, but who?"

"Anybody have any idea as to whom I should contact (if anyone)? The DOJ? State AGs still litigating? The judge's office? (E-mail addresses would be greatly appreciated - there's not much time before the hearing!) I haven't much of a clue when it comes to legal stuff; all I know is the RPFJ stinks and I did my part to fight it, and now I see my effort misrepresented.

By the way, anybody else here who commented might want to check if they're cited in the DOJ's response, and if it actually addresses what you said and not something completely different. If it's just one instance, it could be an honest error. But a pattern of misrepresentation would be a very serious matter indeed.

Thanks!

Sundance writes: "The DOJ has published their answer to the Tunney Act comments on the Microsoft settlement. The gist of it is that, basically, they like the settlement agreement the way it was written and won't change much of it, if at all. Choice quote: "A number of commentors are concerned that Microsoft will deny disclosure of APIs and Documentation, or licensing of Communications Protocols, to open source developers on the grounds that the developers do not meet the "reasonable business need" or "authenticity and viability of business" criteria of Section III.J.2.(441) The United States believes that the requirements in Section III.J.2 are no broader than is necessary to prevent misuse or misappropriation of intellectual property." I guess that crimes pays, after all -- provided that you're rich enough to start with." hbo adds: "The comments are indexed by comment id. There is also an alphabetical list of commentators. To find a particular comment, look it up in the list, then find the comment id in the index. Finally, click on the particular comment to view it."

Sundance writes: "The DOJ has published their answer to the Tunney Act comments on the Microsoft settlement. The gist of it is that, basically, they like the settlement agreement the way it was written and won't change much of it, if at all. Choice quote: "A number of commentors are concerned that Microsoft will deny disclosure of APIs and Documentation, or licensing of Communications Protocols, to open source developers on the grounds that the developers do not meet the "reasonable business need" or "authenticity and viability of business" criteria of Section III.J.2.(441) The United States believes that the requirements in Section III.J.2 are no broader than is necessary to prevent misuse or misappropriation of intellectual property." I guess that crimes pays, after all -- provided that you're rich enough to start with." hbo adds: "The comments are indexed by comment id. There is also an alphabetical list of commentators. To find a particular comment, look it up in the list, then find the comment id in the index. Finally, click on the particular comment to view it."

Sundance writes: "The DOJ has published their answer to the Tunney Act comments on the Microsoft settlement. The gist of it is that, basically, they like the settlement agreement the way it was written and won't change much of it, if at all. Choice quote: "A number of commentors are concerned that Microsoft will deny disclosure of APIs and Documentation, or licensing of Communications Protocols, to open source developers on the grounds that the developers do not meet the "reasonable business need" or "authenticity and viability of business" criteria of Section III.J.2.(441) The United States believes that the requirements in Section III.J.2 are no broader than is necessary to prevent misuse or misappropriation of intellectual property." I guess that crimes pays, after all -- provided that you're rich enough to start with." hbo adds: "The comments are indexed by comment id. There is also an alphabetical list of commentators. To find a particular comment, look it up in the list, then find the comment id in the index. Finally, click on the particular comment to view it."

GreyPoopon writes: "I'm sure somebody has already sent this in, but what the heck. According to Excite, it looks like a summary of the comments on the Microsoft settlement only show 5 of the 47 released by the Justice Department in support of the settlement. Does this mean that Judge Kollar-Kotelly will rely on only these 47 to make her decision?" The comments that the DOJ describes as "major" are now published; the procedure the DOJ wants to follow for publishing all of the 30,000 comments received is contained in a court filing. (The Federal Register, if you don't know, is a dead-tree, daily publication of the doings of the U.S. Federal Government. The Department of Justice is arguing that there are simply too many comments to publish on paper, despite the legal requirement to do so.)

GreyPoopon writes: "I'm sure somebody has already sent this in, but what the heck. According to Excite, it looks like a summary of the comments on the Microsoft settlement only show 5 of the 47 released by the Justice Department in support of the settlement. Does this mean that Judge Kollar-Kotelly will rely on only these 47 to make her decision?" The comments that the DOJ describes as "major" are now published; the procedure the DOJ wants to follow for publishing all of the 30,000 comments received is contained in a court filing. (The Federal Register, if you don't know, is a dead-tree, daily publication of the doings of the U.S. Federal Government. The Department of Justice is arguing that there are simply too many comments to publish on paper, despite the legal requirement to do so.)

securitas writes: "The Electronic Privacy Information Center is suing the US government over its contracts with companies that are data-mining and profiling citizens' personal information for law enforcement agencies like the FBI, DEA, INS, IRS and ATF. ChoicePoint and Experian '...sell information on [individual] U.S. citizens, including credit information, property records, state motor vehicle records, marriage and divorce data' and international assets. The question that springs to mind is who else has access to these detailed profiles besides the government, now that massively expanded investigative powers are being used following 9/11?"

How great is Stephen Satchell's chance of being named to a court-ordered Microsoft oversight committee, assuming such a thing actually gets set up? And how much influence will a Slashdot interview have on the people who make those appointments? Probably not much, but Satch sure did a thorough job of answering your questions about how he'd behave if selected, and why he feels he's qualified.

Satchell:
Before I get to your questions, I want to say something. Given my druthers, I would not be "campaigning" for a seat on the Technical Oversight Committee -- I'd rather be writing code, publishing articles and books, and testing the hell out of computer products. I like what I do today. Unfortunately, I have to act as a grown-up and recognize that there are some things more important than my personal comfort. I feel that, given my skill set, the TC is where I need to be. If they'll have me. Bob Cringley wrote that I "wanted" the job. I don't blame Bob for the slight inaccuracy, because having been a magazine columnist I know what it's like to write to a specified "news hole." Sometimes nuances get dropped when you have exactly 500 words to get your thesis across.

I apologize for correcting spelling and punctuation in the questions submitted by the readers. Blame the writer in me. Besides, Slashdot has enough mispelt words as it is.

So as Art Baker used to say on television every week, "You Asked For It!"

1) What makes you the best man for the job?
by Binestar
Do you have any special agenda to get across or have anything for/against Microsoft that would make it so you were not impartial in your oversight of any federal rulings? As much as most people hate them this needs to be done in a fair and impartial way; will you be able to be fair and impartial?

Satchell:
No, I have no special agenda or strong feelings about Microsoft pro or con. And I don't love or hate the company. Microsoft is neither "good" nor "evil."

And (as the lawyers would say) even if I did have some bias, I've proven to the satisfaction of the computer industry, and to the satisfaction of several judges over the years, that I can be fair and impartial in my evaluations even in the face of bias. (Most of the companies who suffered my reviews add the word "tough" to "fair" and "impartial" in their description of me.)

As I read the explanatory text in the Competitive Impact Statement (CIS), the Technical Committee performs investigations and evaluations of Microsoft's compliance with the terms of the Final Judgement as issued by the Judge, using software expertise -- which is a requirement for being on the Technical Committee -- to catch those things that might otherwise fly by a legal beagle. In other words, the TC is a fact-finding body, and as long as it finds the facts, all the facts, and nothing but the facts it will discharge its job fairly and impartially. The Proposed Final Judgement (PFJ) doesn't do as good a job of explaining it all, but will most likely be the controlling document.

Brian Kendig asked a side question that bears answering: "How will I be able to work with Microsoft without appearing to be biased?" Another question asked about how I would deal with the monster egos at Microsoft. I'll kill two birds with one stone; let me tell you a little story:

Over the years I have worked with the Telecommunications Industry Association, a "standards provider" recognized by ANSI. A number of years ago, a TIA Standards ballot crossed my desk, SP-2812, that described a method of encoding commands and multiple data streams in computer-to-modem connections for enhanced fax and voice-over-data support, among other things - the cellular people started using it, too.. Most of the work on this Standard was contributed by a Microsoft representative (MR), who was also the editor for the Standard. (If the MR in question wants to identify himself, he can do so - he reads Slashdot.) The Standard was virtually unreadable as balloted. After working a full two days to understand what the Standard was trying to say, I was able to construct a description that was clearer, covered all the corner cases, and left room for future expansion. I then voted "No" and faxed my vote and comments to the TIA. The committee chairman asked if I would meet with the SP-2812 editor - the Microsoft representative - as soon as I could. "Mr. MR has a huge ego," said the chairman. We met, we argued, we discussed, and we came to an understanding. I prepared a "contribution" that was a rewrite of the contents of the ballot. The result was EIA 617, better known to the rest of you as ITU Recommendation V.80.

2) Do you feel it is possible to have a unified MS?
by petree
Do you feel that it is possible to have a unified monolithic Microsoft exist in the market without being anti-competitive? Specifically, if the United States government leaves Microsoft as-is (no "break-up") do you feel it is possible to regulate a company that in the past has shown no respect for government intervention?

Satchell:
Yes. Interestingly, it's the TC portion of the PFJ that lets me make that affirmative. Let me explain my take on it.

The effective sales life of a version of commercial software is now one year. The time required to get redress for grievance via lawsuit is around four years. Four years is more than enough time for a commercial software company to crash, die, crumble to dust, and blow away so that there is absolutely nothing left of it. Even if the software company wins its case against Microsoft, it's a Pyrrhic victory because the company will have lost where it counts most, in the marketplace.

The key to making the Final Judgment work to the short window dictated by the commercial-software market cycle is that the TC and Microsoft's Judgement Compliance Officer can solve a problem informally, rather than the complaining party and Microsoft taking years to build and litigate a case. It costs everyone less money, too.

In the academic and non-commercial software market, the key bottleneck isn't time, it's money. Very few non-commercial software efforts can raise the money required to take on the 360-kilogram gorilla - most of the time the leaders of such projects just sigh and go to Plan "B." With the TC (and some changes, hopefully, in the PFJ to allow academic, government, and non-commercial software projects to have standing) the cost of resolving a disclosure difficulty drops dramatically. That means that researchers, government employees, and non-profit developers can spend time getting the job done, not scratching their heads wondering how to do the job.

3) Asking slashdot?
by heyetv
Are you concerned that tying yourself to Slashdot, a known haven for us *nix freaks that are generally hostile towards Microsoft's actions, will harm your chances of obtaining this position, as it would require that those appointing the position perceive you as "objective"?

Satchell:
No. I welcome this opportunity.

I was asked by Slashdot if I would consent to be interviewed, and I agreed. This is no different than if ABC, CNN, InfoWorld, or The Wall Street Journal had called and asked for an interview.

Let me be blunt: I believe the Slashdot readership extends far beyond the boundaries you suggest. If you look at all of the questions that earned at least a +3 score from the reader-moderators, I believe you would see what I see: a broad cross-section of thoughts, opinion, and concern about the effects of the Microsoft Final Judgement. Slashdot questions are different than those that might be posed by a panel of journalists, or a panel of lawyers, or a panel of businessmen. I welcome the questions that Slashdotters ask because I suspect, frankly, no one else will ask quite the questions you have. And those (these) questions deserve answers from each and every candidate.

I would just as readily and as eagerly answer the ten most-insightful questions from, say, a community of Microsoft Certified Engineers or the Fraternal Order of Windows OEMs.

Slashdot isn't exactly a private club, either. My answers to your questions will be read (dissected?) by a wider audience than just those who have slashdot.org in the Bookmarks file of Netscape on their Linux or BSD systems. Count on it.

4) Restrict What?
by JJ
In what areas/functions must Microsoft be restricted in order for it not to violate anti-trust rules in the future? Endless loop:(n); see Loop, Endless.

Satchell:
That's part of the Great Debate between the Microsoft lawyers and the gaggle of Plaintiff lawyers. As you may have read recently, the Plaintiffs have divided on the issue over the number of yards to penalize Microsoft. The DoJ camp feel that ten yards is enough. The California camp feel that fifteen yards plus loss of down is more appropriate, and grumble that perhaps splitting up the Microsoft team into multiple "independent" teams shouldn't be taken off the table. It's now up to you fans to voice your opinion about the call. Unlike your federal elected representatives, the Department of Justice is required by law to respond to your comments, and the judge has to take that response into account.

The Technical Committee will then work within the framework of what the judge decides. I suspect that the rules of play following the pronouncement of the Final Judgement will require some tweaking and amplification once it gets going. The Court writes the rule-book. The TC will be the refs.

The biggest area of restriction that I see is Microsoft's use of NDAs to keep secret things that would block a non-Microsoft program from interoperating with Microsoft products. Much of the PFJ waxes long on this particular subject. Information is power.

5) What Would You Do With Passive Committee Partners?
by UberOogie
What would you do if you were saddled with two other do-nothings on your committee?

Satchell:
For the purpose of this answer, I'll assume that you do not intend to imply that I would be a do-nothing. Otherwise, what's the point? There would be too many lawyers watching for a slacker to get away with it for long, I would think.

If you have never bid on a Federal contract, you wouldn't believe the amount of law that covers the behavior of contractors, and the PFJ makes clear that each member of the TC would be a contractor of the United States Government. When I prepared a bid for a Patent and Trademark Office contract, the applicable law as described in the Code of Federal Regulations ran for more than 150 pages.

The TC members had damn well better care, and work hard and fairly.

6) How tough?
by silicon_synapse
Microsoft is sure to test their boundaries and see how far the overseers will let them go. How much would Microsoft have to stray from the new regulations before you make some noise? Would you be tough and bring to attention the most minor of infractions? Or would you be more lenient and use your judgement to make sure the intent of the regulations are observed?

Satchell:
Good question. One of the nice things that the CIS stresses is that the minor stuff is intended to be settled informally. That implies to me that "the most minor of infractions" can be cleared up quickly and without any attention needed by the lawyers, let alone a judge. That's good for Microsoft, that's good for the TC, that's good for the lawyers who should have better things to do, but most importantly it's good for the outside party with the complaint because, with the dispute resolved quickly, that outside party can get back to the business of developing and out of the business of bellyaching.

Not stated anywhere (yet) is what happens when there is a legitimate difference of opinion about what the Final Judgement really means. Legitimate differences of opinion regarding the meaning of clauses in the Final Judgement might be "kicked upstairs" for resolution or clarification; alternatively, if the TC staff includes a parliamentarian a proposal could be prepared and negotiated at the TC/Compliance-Liaison level and kicked upstairs for an up-or-down decision, again quickly. That's one of the many details that would need to be determined once the Final Judgement is in place.

More importantly and implied in the PFJ is that the TC's six-month report would be able to show any pattern of tendency toward non-compliance and edge-skating, a defect in the 1995 decree that made micro-infractions, to coin a term, almost impossible to track.

7) Playing the devil's advocate...
by BOredAtWork
While the methods Microsoft has used to become an industry giant are questionable, to say the least, the fact is, they are THE industry giant now. Microsoft is responsible for a great number of jobs, conducts research that would be too expensive for almost anyone else, and MSFT is a staple of a great many investment portfolios. Assuming you would become partially responsible for ensuring their compliance with federal regulations, part of your job will inevitably become spin control.

To break Microsoft's chokehold on the industry will send their stock into a tailspin, cause their R&D cycle to slow, and cause a chaotic move for power in various niches by everyone from giants such as IBM to various smaller companies that most people have never heard of. This will cause ripples (or shock waves) in everything from the Dow Jones Industrial Average to unemployment figures to the number of dot-coms that show up and fail at trying to corner a niche to the price of new computers.

My question for you, then, is the following: If you do assume a role such that you oversee Microsoft's compliance with federal guidelines, how will you keep the ripple effects caused by your enforcement in check, and how will you justify the ripples that inevitably are created to the American people?

Satchell:
First, let me disagree in part with your first statement. Microsoft, from the beginning, had a set of axioms of operation that I believe were well-suited to the company as a start-up, served as well during its mid-growth, and led them into anti-competitive action when they became a monopoly. The axioms: "if you use it, you pay for it"; and, "we don't support products from other companies."

Some of the anti-competitive behavior described during trial was proven to be intentional and not related to company axioms, so I'm not trying to excuse Microsoft. That doesn't detract from the fact that some of their acts were good intentions coupled with bad choices, the usual paving material for the road to damnation.

Your question suffers from a touch of tunnel vision, methinks. Heikkile makes the point that Microsoft's actions go far beyond the borders and citizenry of the United States. I believe that the enforcement action that the various settlement documents contemplate will be sufficient to help everyone, not just the "American companies." As a TC member, I can put forward that anyone should be able to put forward a complaint...as long as it's in English. You can put that forward yourself, in your letter to the DoJ about your feelings about the proposed settlement.

The goal of the DoJ is to craft a Final Judgement that will stop anti-competitive behavior, reverse any gains Microsoft may have gotten from anti-competitive behavior, and keep Microsoft more on the straight and narrow in the future. The goal of the Technical Committee, as I see it, is to reduce the pain level to all involved when Microsoft strays over the line, to get Microsoft back in line with a minimum of fuss, delay, and fireworks.

I opine some more: by keeping the company intact, the PFJ doesn't upset the millions of business arrangements already in place, from developers to packagers to retailers to OEMs to volume customers. By DoJ's losing on the bundling/integration issue, Microsoft is saved from having to rebuild its operating system products and creating even more skews of its product line, which in turn saves on technical support by Microsoft and, more importantly, retraining at the OEM, retail, and IT level. In short, the DoJ/Microsoft PFJ already works to keeps the ripple effect down to something manageable, which says to me that the DoJ learned some things from its experiences with AT&T.

I repeat: the sole function of the Technical Committee is to keep Microsoft honest and to help them keep to the agreement they made with the Plaintiffs and the judgements of the Court. By doing my job to the letter, by the book, and according to Hoyle I would be minimizing the ripple effects while permitting Microsoft a chance to continue to do what it has done, bring product to market, and let the marketplace decide thumbs-up or thumbs-down.

8) To boldly go insane....
by jd
This may seem like a really obvious question, but how do you propose to oversee an organization the size and complexity of Microsoft, by yourself and maybe two others?

Microsoft has managed to avoid scrutiny by companies, courts, governments and even users. Many allegations made in the trial, such as "knifing the baby" remarks alleged by Netscape, would simply not be visible, by simply looking at Official Policy Documents. In fact, probably very little actual policy DOES appear in their Official Policy Documents.

In short, you can't hunt ghosts with an electron microscope. You need knowledge of what the right job is, and then you need the tools to do it.

Do you even remotely imagine that this is even possible?

Satchell:
It's obviously impossible. You're right, policing at the level you describe is a task too large for even 300 people, let along three. I doubt it's desirable, either. That would be like having your very own cop sitting in the back seat of your car every time you drive, writing a ticket every time you rolled a stop sign or cut a left turn (right turn for you Brits) too close.

If you read the Competitive Impact Statement, you will see that it contemplates that the Technical Committee will be complaint-driven. Because the process for the complaint (not yet defined, by the way) should be less onerous than filing a lawsuit with the 800-pound gorilla, people who feel that Microsoft has violated the agreement with respect to them will file complaints.

As suggested by the CIS, the TC will have to do some kind of triage and prioritize the complaints, and group like complaints together. Then they will investigate the complaints and work with the Microsoft Compliance Liaison Officer to see if there is a simple fix for the problem. If there is, the fix is put in place and the file closed and logged.

And if it can't be fixed? The TC reports to the Plaintiff committee, providing all information available about the complaint. It's then up to the Plaintiff committee to decide what to do. It could be as simple as a lawyer-to-lawyer phone call and directions to the TC and the Compliance Officer. It could be as complex as a special court hearing. Who knows? But all that stuff is above the TC's pay grade.

The PFJ anticipates that the TC may well need a staff. This wouldn't be a large staff, and would be sized according to the load. No, I'm not taking resumes... :)

One reason I suspect that the members of the Technical Committee must be "experts in software design and programming" is to minimize the "staff effect" that cripples the decision-making process in many oversight committees. If the members themselves have the background to understand the underlying issues, to judge the clues found in the source, books, and memos, and to assimilate the Microsoft technical and non-technical response, you eliminate the mini-trials that are the hallmark of the operation of many government regulatory boards. You also eliminate the exclusive judgement of staff, people who do not take the heat for their decisions like a member would or should.

9) The obvious question...
by Stonehead
Where lies in your opinion the boundary between anti-competitive functionality and "improving the users' experience"? By now, everybody is used to bundling a browser with the OS. But what about video-editing software? The (Sun) Java VM or the .NET Common Language Runtime? Passport? etcetera..

Satchell:
As a member of the Technical Committee, my opinions in this matter are, frankly, not applicable. Other people decide the policy, the TC just implements the policy as set by the judge. But it's an interesting question, and I'm happy to take a stab at it. To wit, my opinion:

Richard M. Stallman asked the right question a long time ago: "If it's broke, how do I fix it?"

There is a BIG difference between "bundling" and "integrating" user-land applications into an operating system. If Microsoft wants to bundle a DVD-ROM full of stuff with Windows 2006, I say more power to them...as long as I don't have to have any part of Windows Recording Studio in order to install Syntrillium's CoolEdit as my multi-channel wave editor.

On the other hand, Microsoft has to be able to test and support functionality that the users want, or say they want. In the enterprise environment, the ability to install patches from a central facility is a real boon to the Information Technology department. Integrating everything together reduces the technical support headache for Microsoft. If it reduces the time for a tech support call, that's money saved, either for Microsoft for warranty support or the user if he or she is buying by-the-incident support services, or for the IT department if it provides its own support. Fewer variables.

And that is where "competition" and "user experience" clash. The optimal solution from Microsoft's perspective is also anti-competitive, not because they are worried about sales but because they are worried about tech support cost. The optimal solution from the perspective of Big Business is to standardize on a single solution that can be deployed, and if Microsoft's solution doesn't do the trick then Big Business will find someone else who can do the trick. The optimal solution from the perspective of the home user is that something happens magically. The optimal solution from the perspective of the SOHO user is to have none of it, because the SOHO computer is an attractive target for the Black Hats and the SOHO user doesn't want to have to spend $2K on a super-tricked-out firewall appliance between his computer and the outside world.

If it's broke, how do I fix it? Any solution MUST answer that question, for all users.

10a) Corruption?
by jamesidm
What is in place to prevent Microsoft from potentially bribing you or other members of the committee? Would you turn down 7 figure offers for the good of the computing community?

-- plus --

10b) Re: Corruption?
by Odinson
Perhaps I could elaborate with my intended question.

Do you think board members should make themselves available for financial audits?

If so...

How deep into the board members lives can the audits go and how long after their stay on the board should their financial records be reviewed?

Satchell:
The Technical Committee has a report it has to file every six months (every month if I have any say) that details what it's done and the rationale it used for its decisions. An experienced lawyer is very, very good at seeing BS in reports like that.

And now for something I don't expect anyone here to believe: I've turned down bribes while I was a product reviewer. I turned down money. I turned down sex. I turned down neat toys. Several of my colleagues said I was a fool to turn down all that stuff - indeed, I have a long-running feud with a well-known writer over the importance of the appearance of being ethical. He tells people I commit "fiscal suicide." (Don't worry, I have equally nasty things to say about him. It balances.)

Ever been fired from a job because you couldn't lie? I have. Now you know. (Hint: it wasn't a magazine that wanted me to lie. Not that I would.) I'm just not good at lying. In order to be successfully corrupt, you have to be able to lie convincingly. I don't have that skill.

I expect that as a TC member I would have to file financial disclosure forms, that indicate major sources of income plus investments. I filed these as a journalist and as a reviewer, so I don't have a problem with that.

As for audits: people, please! This is the UNITED STATES DEPARTMENT OF JUSTICE we are talking about. If DoJ suspects ANY problem, they have an in-house investigative arm that you may have heard of: the Federal Bureau of Investigation. With the power to probe into any aspect of my life that they choose.

===

That's it for your ten questions as selected by Slashdot editors. There were other good questions that I think deserve a response, so I'll lump answers to them in the next handful of paragraphs.

First, in my lab I run 14 systems variously populated with Windows (98SE and 2000 Pro), Linux (Slackware and Red Hat), and MacOS (8.5) on a 6400. I have a couple of Sun boxes loaded with Solaris, too, but they aren't running right now. All but one Windows system dual-boots Linux. I have an early BeOS CD-ROM, but it's been a while since I loaded it. My 286 box has QNX on it, but that's been powered off for a long time. The last MS-DOS box bit the dust last year. I switch between operating systems frequently, choosing the one that is best suited to do the job that needs to be done. The general-purpose Linux boxes all have SAMBA, and one of those SAMBA boxes is my Windows domain controller. (I'm trying to get HP to give me Linux software to make my Network Scanner 5 work with my Linux domain controller - no luck. Anyone at HP listening?) I may be forced to load the copy of Windows NT Server I have on the shelf, or I may put the newly-acquired HP Kayak into that service. The house is wired with 100-base T, and there are a couple of ethernet switches to break up the collection into logical groups.

I have written software for resale that runs on Ultrix, SunOS, Windows, MacOS, Linux, MS-DOS, and Hunter & Ready's VRTX. I have written operating systems for embedded products, and worked on operating systems all through my 30-year career.

Some high points: Worked on ARPAnet while at University of Illinois. Software and system design for embedded-computer products at Rockwell, Recognition Equipment, Addressograph-Multigraph. Benchmark writer at InfoWorld. Technical editor at InfoWorld. Built modem test lab at Ziff-Davis Labs. SPECmark member via MacUser magazine (did SPECmarks for early 680x0 Macs). Editor of the modem testing standard for TIA (now EIA 3800). Reviewed and wrote about more than 600 products in over 400 articles. Wrote Linux IP Stacks Commentary for Coriolis Books. Work at the annual Glenn Tenney THINK conference. Cameraman for local PBS station. Test Manager at Motorola ISG on the soft-modem project. Ran BBSes, BIX Telecom Exchange, assisted with CompuServie IBMSIG. Wrote, sold, and supported OTTO suite for analog modem testing.

I have never worked for Microsoft or any operating system vendor in any capacity, technical or non-technical. Microsoft and its direct competitors, directly or through PR representatives, have never paid me a dime, given me a T-shirt, or gifted me with a logo-bearing yo-yo. All Microsoft products that I've gotten through the years were purchased, bundled with systems, or were evaluation units (clearly marked "not for resale") provided to me in my capacity as a member of the working press and obtained through [Microsoft's PR agency] WaggEd .

Some yahoo bitched about how obtuse my contribution to W3C was. My training as a writer taught me how to write to an audience. That contribution - a formal response to a W3C position paper - was written in Standard-ese. I hope the bozo sees the difference between that paper (written for stuffed shirts) and this little tome. Don't like it? Write me.

Remember the Cyberporn story Time magazine ran in 1995? A bunch of us on alt.internet.media-coverage who work in the press fumed and fumed about that story. After much discussion, and many complaints from others who fumed that we were taking over the newsgroup, we decided to form The Internet Press Guild as a resource to mainstream press people who got an Internet beat without knowing much about it. So far, nothing as bad as the infamous "Rimm Job" has hit the mainstream press since we started.

I was an OS architect a number of years ago, so I understand the mind-set all too well. Grew out of it, but I remember the feelings, the attitudes, the arrogance. It helps to understand the organization you are about to oversee. Microsoft is one of the few organizations I have ever encountered that exhibits the mind-set, behavior, and mannerisms of the OS architect.

If I don't get the job, I'll just continue doing what I'm doing today. If the TC that is selected does a bad job and the computer industry craters, I'll seek out a new career. It's that simple.

That should do it. Now some of you know just a little more about me than you did before.

PS: To be complete, I should mention I'm not the only one with my hat in the ring. John Dvorak announced his "candidacy" in his November 2, 2001 column in PC Magazine. You need to talk with him about his qualifications for sitting on the Technical Committee.

How great is Stephen Satchell's chance of being named to a court-ordered Microsoft oversight committee, assuming such a thing actually gets set up? And how much influence will a Slashdot interview have on the people who make those appointments? Probably not much, but Satch sure did a thorough job of answering your questions about how he'd behave if selected, and why he feels he's qualified.

Satchell:
Before I get to your questions, I want to say something. Given my druthers, I would not be "campaigning" for a seat on the Technical Oversight Committee -- I'd rather be writing code, publishing articles and books, and testing the hell out of computer products. I like what I do today. Unfortunately, I have to act as a grown-up and recognize that there are some things more important than my personal comfort. I feel that, given my skill set, the TC is where I need to be. If they'll have me. Bob Cringley wrote that I "wanted" the job. I don't blame Bob for the slight inaccuracy, because having been a magazine columnist I know what it's like to write to a specified "news hole." Sometimes nuances get dropped when you have exactly 500 words to get your thesis across.

I apologize for correcting spelling and punctuation in the questions submitted by the readers. Blame the writer in me. Besides, Slashdot has enough mispelt words as it is.

So as Art Baker used to say on television every week, "You Asked For It!"

1) What makes you the best man for the job?
by Binestar
Do you have any special agenda to get across or have anything for/against Microsoft that would make it so you were not impartial in your oversight of any federal rulings? As much as most people hate them this needs to be done in a fair and impartial way; will you be able to be fair and impartial?

Satchell:
No, I have no special agenda or strong feelings about Microsoft pro or con. And I don't love or hate the company. Microsoft is neither "good" nor "evil."

And (as the lawyers would say) even if I did have some bias, I've proven to the satisfaction of the computer industry, and to the satisfaction of several judges over the years, that I can be fair and impartial in my evaluations even in the face of bias. (Most of the companies who suffered my reviews add the word "tough" to "fair" and "impartial" in their description of me.)

As I read the explanatory text in the Competitive Impact Statement (CIS), the Technical Committee performs investigations and evaluations of Microsoft's compliance with the terms of the Final Judgement as issued by the Judge, using software expertise -- which is a requirement for being on the Technical Committee -- to catch those things that might otherwise fly by a legal beagle. In other words, the TC is a fact-finding body, and as long as it finds the facts, all the facts, and nothing but the facts it will discharge its job fairly and impartially. The Proposed Final Judgement (PFJ) doesn't do as good a job of explaining it all, but will most likely be the controlling document.

Brian Kendig asked a side question that bears answering: "How will I be able to work with Microsoft without appearing to be biased?" Another question asked about how I would deal with the monster egos at Microsoft. I'll kill two birds with one stone; let me tell you a little story:

Over the years I have worked with the Telecommunications Industry Association, a "standards provider" recognized by ANSI. A number of years ago, a TIA Standards ballot crossed my desk, SP-2812, that described a method of encoding commands and multiple data streams in computer-to-modem connections for enhanced fax and voice-over-data support, among other things - the cellular people started using it, too.. Most of the work on this Standard was contributed by a Microsoft representative (MR), who was also the editor for the Standard. (If the MR in question wants to identify himself, he can do so - he reads Slashdot.) The Standard was virtually unreadable as balloted. After working a full two days to understand what the Standard was trying to say, I was able to construct a description that was clearer, covered all the corner cases, and left room for future expansion. I then voted "No" and faxed my vote and comments to the TIA. The committee chairman asked if I would meet with the SP-2812 editor - the Microsoft representative - as soon as I could. "Mr. MR has a huge ego," said the chairman. We met, we argued, we discussed, and we came to an understanding. I prepared a "contribution" that was a rewrite of the contents of the ballot. The result was EIA 617, better known to the rest of you as ITU Recommendation V.80.

2) Do you feel it is possible to have a unified MS?
by petree
Do you feel that it is possible to have a unified monolithic Microsoft exist in the market without being anti-competitive? Specifically, if the United States government leaves Microsoft as-is (no "break-up") do you feel it is possible to regulate a company that in the past has shown no respect for government intervention?

Satchell:
Yes. Interestingly, it's the TC portion of the PFJ that lets me make that affirmative. Let me explain my take on it.

The effective sales life of a version of commercial software is now one year. The time required to get redress for grievance via lawsuit is around four years. Four years is more than enough time for a commercial software company to crash, die, crumble to dust, and blow away so that there is absolutely nothing left of it. Even if the software company wins its case against Microsoft, it's a Pyrrhic victory because the company will have lost where it counts most, in the marketplace.

The key to making the Final Judgment work to the short window dictated by the commercial-software market cycle is that the TC and Microsoft's Judgement Compliance Officer can solve a problem informally, rather than the complaining party and Microsoft taking years to build and litigate a case. It costs everyone less money, too.

In the academic and non-commercial software market, the key bottleneck isn't time, it's money. Very few non-commercial software efforts can raise the money required to take on the 360-kilogram gorilla - most of the time the leaders of such projects just sigh and go to Plan "B." With the TC (and some changes, hopefully, in the PFJ to allow academic, government, and non-commercial software projects to have standing) the cost of resolving a disclosure difficulty drops dramatically. That means that researchers, government employees, and non-profit developers can spend time getting the job done, not scratching their heads wondering how to do the job.

3) Asking slashdot?
by heyetv
Are you concerned that tying yourself to Slashdot, a known haven for us *nix freaks that are generally hostile towards Microsoft's actions, will harm your chances of obtaining this position, as it would require that those appointing the position perceive you as "objective"?

Satchell:
No. I welcome this opportunity.

I was asked by Slashdot if I would consent to be interviewed, and I agreed. This is no different than if ABC, CNN, InfoWorld, or The Wall Street Journal had called and asked for an interview.

Let me be blunt: I believe the Slashdot readership extends far beyond the boundaries you suggest. If you look at all of the questions that earned at least a +3 score from the reader-moderators, I believe you would see what I see: a broad cross-section of thoughts, opinion, and concern about the effects of the Microsoft Final Judgement. Slashdot questions are different than those that might be posed by a panel of journalists, or a panel of lawyers, or a panel of businessmen. I welcome the questions that Slashdotters ask because I suspect, frankly, no one else will ask quite the questions you have. And those (these) questions deserve answers from each and every candidate.

I would just as readily and as eagerly answer the ten most-insightful questions from, say, a community of Microsoft Certified Engineers or the Fraternal Order of Windows OEMs.

Slashdot isn't exactly a private club, either. My answers to your questions will be read (dissected?) by a wider audience than just those who have slashdot.org in the Bookmarks file of Netscape on their Linux or BSD systems. Count on it.

4) Restrict What?
by JJ
In what areas/functions must Microsoft be restricted in order for it not to violate anti-trust rules in the future? Endless loop:(n); see Loop, Endless.

Satchell:
That's part of the Great Debate between the Microsoft lawyers and the gaggle of Plaintiff lawyers. As you may have read recently, the Plaintiffs have divided on the issue over the number of yards to penalize Microsoft. The DoJ camp feel that ten yards is enough. The California camp feel that fifteen yards plus loss of down is more appropriate, and grumble that perhaps splitting up the Microsoft team into multiple "independent" teams shouldn't be taken off the table. It's now up to you fans to voice your opinion about the call. Unlike your federal elected representatives, the Department of Justice is required by law to respond to your comments, and the judge has to take that response into account.

The Technical Committee will then work within the framework of what the judge decides. I suspect that the rules of play following the pronouncement of the Final Judgement will require some tweaking and amplification once it gets going. The Court writes the rule-book. The TC will be the refs.

The biggest area of restriction that I see is Microsoft's use of NDAs to keep secret things that would block a non-Microsoft program from interoperating with Microsoft products. Much of the PFJ waxes long on this particular subject. Information is power.

5) What Would You Do With Passive Committee Partners?
by UberOogie
What would you do if you were saddled with two other do-nothings on your committee?

Satchell:
For the purpose of this answer, I'll assume that you do not intend to imply that I would be a do-nothing. Otherwise, what's the point? There would be too many lawyers watching for a slacker to get away with it for long, I would think.

If you have never bid on a Federal contract, you wouldn't believe the amount of law that covers the behavior of contractors, and the PFJ makes clear that each member of the TC would be a contractor of the United States Government. When I prepared a bid for a Patent and Trademark Office contract, the applicable law as described in the Code of Federal Regulations ran for more than 150 pages.

The TC members had damn well better care, and work hard and fairly.

6) How tough?
by silicon_synapse
Microsoft is sure to test their boundaries and see how far the overseers will let them go. How much would Microsoft have to stray from the new regulations before you make some noise? Would you be tough and bring to attention the most minor of infractions? Or would you be more lenient and use your judgement to make sure the intent of the regulations are observed?

Satchell:
Good question. One of the nice things that the CIS stresses is that the minor stuff is intended to be settled informally. That implies to me that "the most minor of infractions" can be cleared up quickly and without any attention needed by the lawyers, let alone a judge. That's good for Microsoft, that's good for the TC, that's good for the lawyers who should have better things to do, but most importantly it's good for the outside party with the complaint because, with the dispute resolved quickly, that outside party can get back to the business of developing and out of the business of bellyaching.

Not stated anywhere (yet) is what happens when there is a legitimate difference of opinion about what the Final Judgement really means. Legitimate differences of opinion regarding the meaning of clauses in the Final Judgement might be "kicked upstairs" for resolution or clarification; alternatively, if the TC staff includes a parliamentarian a proposal could be prepared and negotiated at the TC/Compliance-Liaison level and kicked upstairs for an up-or-down decision, again quickly. That's one of the many details that would need to be determined once the Final Judgement is in place.

More importantly and implied in the PFJ is that the TC's six-month report would be able to show any pattern of tendency toward non-compliance and edge-skating, a defect in the 1995 decree that made micro-infractions, to coin a term, almost impossible to track.

7) Playing the devil's advocate...
by BOredAtWork
While the methods Microsoft has used to become an industry giant are questionable, to say the least, the fact is, they are THE industry giant now. Microsoft is responsible for a great number of jobs, conducts research that would be too expensive for almost anyone else, and MSFT is a staple of a great many investment portfolios. Assuming you would become partially responsible for ensuring their compliance with federal regulations, part of your job will inevitably become spin control.

To break Microsoft's chokehold on the industry will send their stock into a tailspin, cause their R&D cycle to slow, and cause a chaotic move for power in various niches by everyone from giants such as IBM to various smaller companies that most people have never heard of. This will cause ripples (or shock waves) in everything from the Dow Jones Industrial Average to unemployment figures to the number of dot-coms that show up and fail at trying to corner a niche to the price of new computers.

My question for you, then, is the following: If you do assume a role such that you oversee Microsoft's compliance with federal guidelines, how will you keep the ripple effects caused by your enforcement in check, and how will you justify the ripples that inevitably are created to the American people?

Satchell:
First, let me disagree in part with your first statement. Microsoft, from the beginning, had a set of axioms of operation that I believe were well-suited to the company as a start-up, served as well during its mid-growth, and led them into anti-competitive action when they became a monopoly. The axioms: "if you use it, you pay for it"; and, "we don't support products from other companies."

Some of the anti-competitive behavior described during trial was proven to be intentional and not related to company axioms, so I'm not trying to excuse Microsoft. That doesn't detract from the fact that some of their acts were good intentions coupled with bad choices, the usual paving material for the road to damnation.

Your question suffers from a touch of tunnel vision, methinks. Heikkile makes the point that Microsoft's actions go far beyond the borders and citizenry of the United States. I believe that the enforcement action that the various settlement documents contemplate will be sufficient to help everyone, not just the "American companies." As a TC member, I can put forward that anyone should be able to put forward a complaint...as long as it's in English. You can put that forward yourself, in your letter to the DoJ about your feelings about the proposed settlement.

The goal of the DoJ is to craft a Final Judgement that will stop anti-competitive behavior, reverse any gains Microsoft may have gotten from anti-competitive behavior, and keep Microsoft more on the straight and narrow in the future. The goal of the Technical Committee, as I see it, is to reduce the pain level to all involved when Microsoft strays over the line, to get Microsoft back in line with a minimum of fuss, delay, and fireworks.

I opine some more: by keeping the company intact, the PFJ doesn't upset the millions of business arrangements already in place, from developers to packagers to retailers to OEMs to volume customers. By DoJ's losing on the bundling/integration issue, Microsoft is saved from having to rebuild its operating system products and creating even more skews of its product line, which in turn saves on technical support by Microsoft and, more importantly, retraining at the OEM, retail, and IT level. In short, the DoJ/Microsoft PFJ already works to keeps the ripple effect down to something manageable, which says to me that the DoJ learned some things from its experiences with AT&T.

I repeat: the sole function of the Technical Committee is to keep Microsoft honest and to help them keep to the agreement they made with the Plaintiffs and the judgements of the Court. By doing my job to the letter, by the book, and according to Hoyle I would be minimizing the ripple effects while permitting Microsoft a chance to continue to do what it has done, bring product to market, and let the marketplace decide thumbs-up or thumbs-down.

8) To boldly go insane....
by jd
This may seem like a really obvious question, but how do you propose to oversee an organization the size and complexity of Microsoft, by yourself and maybe two others?

Microsoft has managed to avoid scrutiny by companies, courts, governments and even users. Many allegations made in the trial, such as "knifing the baby" remarks alleged by Netscape, would simply not be visible, by simply looking at Official Policy Documents. In fact, probably very little actual policy DOES appear in their Official Policy Documents.

In short, you can't hunt ghosts with an electron microscope. You need knowledge of what the right job is, and then you need the tools to do it.

Do you even remotely imagine that this is even possible?

Satchell:
It's obviously impossible. You're right, policing at the level you describe is a task too large for even 300 people, let along three. I doubt it's desirable, either. That would be like having your very own cop sitting in the back seat of your car every time you drive, writing a ticket every time you rolled a stop sign or cut a left turn (right turn for you Brits) too close.

If you read the Competitive Impact Statement, you will see that it contemplates that the Technical Committee will be complaint-driven. Because the process for the complaint (not yet defined, by the way) should be less onerous than filing a lawsuit with the 800-pound gorilla, people who feel that Microsoft has violated the agreement with respect to them will file complaints.

As suggested by the CIS, the TC will have to do some kind of triage and prioritize the complaints, and group like complaints together. Then they will investigate the complaints and work with the Microsoft Compliance Liaison Officer to see if there is a simple fix for the problem. If there is, the fix is put in place and the file closed and logged.

And if it can't be fixed? The TC reports to the Plaintiff committee, providing all information available about the complaint. It's then up to the Plaintiff committee to decide what to do. It could be as simple as a lawyer-to-lawyer phone call and directions to the TC and the Compliance Officer. It could be as complex as a special court hearing. Who knows? But all that stuff is above the TC's pay grade.

The PFJ anticipates that the TC may well need a staff. This wouldn't be a large staff, and would be sized according to the load. No, I'm not taking resumes... :)

One reason I suspect that the members of the Technical Committee must be "experts in software design and programming" is to minimize the "staff effect" that cripples the decision-making process in many oversight committees. If the members themselves have the background to understand the underlying issues, to judge the clues found in the source, books, and memos, and to assimilate the Microsoft technical and non-technical response, you eliminate the mini-trials that are the hallmark of the operation of many government regulatory boards. You also eliminate the exclusive judgement of staff, people who do not take the heat for their decisions like a member would or should.

9) The obvious question...
by Stonehead
Where lies in your opinion the boundary between anti-competitive functionality and "improving the users' experience"? By now, everybody is used to bundling a browser with the OS. But what about video-editing software? The (Sun) Java VM or the .NET Common Language Runtime? Passport? etcetera..

Satchell:
As a member of the Technical Committee, my opinions in this matter are, frankly, not applicable. Other people decide the policy, the TC just implements the policy as set by the judge. But it's an interesting question, and I'm happy to take a stab at it. To wit, my opinion:

Richard M. Stallman asked the right question a long time ago: "If it's broke, how do I fix it?"

There is a BIG difference between "bundling" and "integrating" user-land applications into an operating system. If Microsoft wants to bundle a DVD-ROM full of stuff with Windows 2006, I say more power to them...as long as I don't have to have any part of Windows Recording Studio in order to install Syntrillium's CoolEdit as my multi-channel wave editor.

On the other hand, Microsoft has to be able to test and support functionality that the users want, or say they want. In the enterprise environment, the ability to install patches from a central facility is a real boon to the Information Technology department. Integrating everything together reduces the technical support headache for Microsoft. If it reduces the time for a tech support call, that's money saved, either for Microsoft for warranty support or the user if he or she is buying by-the-incident support services, or for the IT department if it provides its own support. Fewer variables.

And that is where "competition" and "user experience" clash. The optimal solution from Microsoft's perspective is also anti-competitive, not because they are worried about sales but because they are worried about tech support cost. The optimal solution from the perspective of Big Business is to standardize on a single solution that can be deployed, and if Microsoft's solution doesn't do the trick then Big Business will find someone else who can do the trick. The optimal solution from the perspective of the home user is that something happens magically. The optimal solution from the perspective of the SOHO user is to have none of it, because the SOHO computer is an attractive target for the Black Hats and the SOHO user doesn't want to have to spend $2K on a super-tricked-out firewall appliance between his computer and the outside world.

If it's broke, how do I fix it? Any solution MUST answer that question, for all users.

10a) Corruption?
by jamesidm
What is in place to prevent Microsoft from potentially bribing you or other members of the committee? Would you turn down 7 figure offers for the good of the computing community?

-- plus --

10b) Re: Corruption?
by Odinson
Perhaps I could elaborate with my intended question.

Do you think board members should make themselves available for financial audits?

If so...

How deep into the board members lives can the audits go and how long after their stay on the board should their financial records be reviewed?

Satchell:
The Technical Committee has a report it has to file every six months (every month if I have any say) that details what it's done and the rationale it used for its decisions. An experienced lawyer is very, very good at seeing BS in reports like that.

And now for something I don't expect anyone here to believe: I've turned down bribes while I was a product reviewer. I turned down money. I turned down sex. I turned down neat toys. Several of my colleagues said I was a fool to turn down all that stuff - indeed, I have a long-running feud with a well-known writer over the importance of the appearance of being ethical. He tells people I commit "fiscal suicide." (Don't worry, I have equally nasty things to say about him. It balances.)

Ever been fired from a job because you couldn't lie? I have. Now you know. (Hint: it wasn't a magazine that wanted me to lie. Not that I would.) I'm just not good at lying. In order to be successfully corrupt, you have to be able to lie convincingly. I don't have that skill.

I expect that as a TC member I would have to file financial disclosure forms, that indicate major sources of income plus investments. I filed these as a journalist and as a reviewer, so I don't have a problem with that.

As for audits: people, please! This is the UNITED STATES DEPARTMENT OF JUSTICE we are talking about. If DoJ suspects ANY problem, they have an in-house investigative arm that you may have heard of: the Federal Bureau of Investigation. With the power to probe into any aspect of my life that they choose.

===

That's it for your ten questions as selected by Slashdot editors. There were other good questions that I think deserve a response, so I'll lump answers to them in the next handful of paragraphs.

First, in my lab I run 14 systems variously populated with Windows (98SE and 2000 Pro), Linux (Slackware and Red Hat), and MacOS (8.5) on a 6400. I have a couple of Sun boxes loaded with Solaris, too, but they aren't running right now. All but one Windows system dual-boots Linux. I have an early BeOS CD-ROM, but it's been a while since I loaded it. My 286 box has QNX on it, but that's been powered off for a long time. The last MS-DOS box bit the dust last year. I switch between operating systems frequently, choosing the one that is best suited to do the job that needs to be done. The general-purpose Linux boxes all have SAMBA, and one of those SAMBA boxes is my Windows domain controller. (I'm trying to get HP to give me Linux software to make my Network Scanner 5 work with my Linux domain controller - no luck. Anyone at HP listening?) I may be forced to load the copy of Windows NT Server I have on the shelf, or I may put the newly-acquired HP Kayak into that service. The house is wired with 100-base T, and there are a couple of ethernet switches to break up the collection into logical groups.

I have written software for resale that runs on Ultrix, SunOS, Windows, MacOS, Linux, MS-DOS, and Hunter & Ready's VRTX. I have written operating systems for embedded products, and worked on operating systems all through my 30-year career.

Some high points: Worked on ARPAnet while at University of Illinois. Software and system design for embedded-computer products at Rockwell, Recognition Equipment, Addressograph-Multigraph. Benchmark writer at InfoWorld. Technical editor at InfoWorld. Built modem test lab at Ziff-Davis Labs. SPECmark member via MacUser magazine (did SPECmarks for early 680x0 Macs). Editor of the modem testing standard for TIA (now EIA 3800). Reviewed and wrote about more than 600 products in over 400 articles. Wrote Linux IP Stacks Commentary for Coriolis Books. Work at the annual Glenn Tenney THINK conference. Cameraman for local PBS station. Test Manager at Motorola ISG on the soft-modem project. Ran BBSes, BIX Telecom Exchange, assisted with CompuServie IBMSIG. Wrote, sold, and supported OTTO suite for analog modem testing.

I have never worked for Microsoft or any operating system vendor in any capacity, technical or non-technical. Microsoft and its direct competitors, directly or through PR representatives, have never paid me a dime, given me a T-shirt, or gifted me with a logo-bearing yo-yo. All Microsoft products that I've gotten through the years were purchased, bundled with systems, or were evaluation units (clearly marked "not for resale") provided to me in my capacity as a member of the working press and obtained through [Microsoft's PR agency] WaggEd .

Some yahoo bitched about how obtuse my contribution to W3C was. My training as a writer taught me how to write to an audience. That contribution - a formal response to a W3C position paper - was written in Standard-ese. I hope the bozo sees the difference between that paper (written for stuffed shirts) and this little tome. Don't like it? Write me.

Remember the Cyberporn story Time magazine ran in 1995? A bunch of us on alt.internet.media-coverage who work in the press fumed and fumed about that story. After much discussion, and many complaints from others who fumed that we were taking over the newsgroup, we decided to form The Internet Press Guild as a resource to mainstream press people who got an Internet beat without knowing much about it. So far, nothing as bad as the infamous "Rimm Job" has hit the mainstream press since we started.

I was an OS architect a number of years ago, so I understand the mind-set all too well. Grew out of it, but I remember the feelings, the attitudes, the arrogance. It helps to understand the organization you are about to oversee. Microsoft is one of the few organizations I have ever encountered that exhibits the mind-set, behavior, and mannerisms of the OS architect.

If I don't get the job, I'll just continue doing what I'm doing today. If the TC that is selected does a bad job and the computer industry craters, I'll seek out a new career. It's that simple.

That should do it. Now some of you know just a little more about me than you did before.

PS: To be complete, I should mention I'm not the only one with my hat in the ring. John Dvorak announced his "candidacy" in his November 2, 2001 column in PC Magazine. You need to talk with him about his qualifications for sitting on the Technical Committee.

How great is Stephen Satchell's chance of being named to a court-ordered Microsoft oversight committee, assuming such a thing actually gets set up? And how much influence will a Slashdot interview have on the people who make those appointments? Probably not much, but Satch sure did a thorough job of answering your questions about how he'd behave if selected, and why he feels he's qualified.

Satchell:
Before I get to your questions, I want to say something. Given my druthers, I would not be "campaigning" for a seat on the Technical Oversight Committee -- I'd rather be writing code, publishing articles and books, and testing the hell out of computer products. I like what I do today. Unfortunately, I have to act as a grown-up and recognize that there are some things more important than my personal comfort. I feel that, given my skill set, the TC is where I need to be. If they'll have me. Bob Cringley wrote that I "wanted" the job. I don't blame Bob for the slight inaccuracy, because having been a magazine columnist I know what it's like to write to a specified "news hole." Sometimes nuances get dropped when you have exactly 500 words to get your thesis across.

I apologize for correcting spelling and punctuation in the questions submitted by the readers. Blame the writer in me. Besides, Slashdot has enough mispelt words as it is.

So as Art Baker used to say on television every week, "You Asked For It!"

1) What makes you the best man for the job?
by Binestar
Do you have any special agenda to get across or have anything for/against Microsoft that would make it so you were not impartial in your oversight of any federal rulings? As much as most people hate them this needs to be done in a fair and impartial way; will you be able to be fair and impartial?

Satchell:
No, I have no special agenda or strong feelings about Microsoft pro or con. And I don't love or hate the company. Microsoft is neither "good" nor "evil."

And (as the lawyers would say) even if I did have some bias, I've proven to the satisfaction of the computer industry, and to the satisfaction of several judges over the years, that I can be fair and impartial in my evaluations even in the face of bias. (Most of the companies who suffered my reviews add the word "tough" to "fair" and "impartial" in their description of me.)

As I read the explanatory text in the Competitive Impact Statement (CIS), the Technical Committee performs investigations and evaluations of Microsoft's compliance with the terms of the Final Judgement as issued by the Judge, using software expertise -- which is a requirement for being on the Technical Committee -- to catch those things that might otherwise fly by a legal beagle. In other words, the TC is a fact-finding body, and as long as it finds the facts, all the facts, and nothing but the facts it will discharge its job fairly and impartially. The Proposed Final Judgement (PFJ) doesn't do as good a job of explaining it all, but will most likely be the controlling document.

Brian Kendig asked a side question that bears answering: "How will I be able to work with Microsoft without appearing to be biased?" Another question asked about how I would deal with the monster egos at Microsoft. I'll kill two birds with one stone; let me tell you a little story:

Over the years I have worked with the Telecommunications Industry Association, a "standards provider" recognized by ANSI. A number of years ago, a TIA Standards ballot crossed my desk, SP-2812, that described a method of encoding commands and multiple data streams in computer-to-modem connections for enhanced fax and voice-over-data support, among other things - the cellular people started using it, too.. Most of the work on this Standard was contributed by a Microsoft representative (MR), who was also the editor for the Standard. (If the MR in question wants to identify himself, he can do so - he reads Slashdot.) The Standard was virtually unreadable as balloted. After working a full two days to understand what the Standard was trying to say, I was able to construct a description that was clearer, covered all the corner cases, and left room for future expansion. I then voted "No" and faxed my vote and comments to the TIA. The committee chairman asked if I would meet with the SP-2812 editor - the Microsoft representative - as soon as I could. "Mr. MR has a huge ego," said the chairman. We met, we argued, we discussed, and we came to an understanding. I prepared a "contribution" that was a rewrite of the contents of the ballot. The result was EIA 617, better known to the rest of you as ITU Recommendation V.80.

2) Do you feel it is possible to have a unified MS?
by petree
Do you feel that it is possible to have a unified monolithic Microsoft exist in the market without being anti-competitive? Specifically, if the United States government leaves Microsoft as-is (no "break-up") do you feel it is possible to regulate a company that in the past has shown no respect for government intervention?

Satchell:
Yes. Interestingly, it's the TC portion of the PFJ that lets me make that affirmative. Let me explain my take on it.

The effective sales life of a version of commercial software is now one year. The time required to get redress for grievance via lawsuit is around four years. Four years is more than enough time for a commercial software company to crash, die, crumble to dust, and blow away so that there is absolutely nothing left of it. Even if the software company wins its case against Microsoft, it's a Pyrrhic victory because the company will have lost where it counts most, in the marketplace.

The key to making the Final Judgment work to the short window dictated by the commercial-software market cycle is that the TC and Microsoft's Judgement Compliance Officer can solve a problem informally, rather than the complaining party and Microsoft taking years to build and litigate a case. It costs everyone less money, too.

In the academic and non-commercial software market, the key bottleneck isn't time, it's money. Very few non-commercial software efforts can raise the money required to take on the 360-kilogram gorilla - most of the time the leaders of such projects just sigh and go to Plan "B." With the TC (and some changes, hopefully, in the PFJ to allow academic, government, and non-commercial software projects to have standing) the cost of resolving a disclosure difficulty drops dramatically. That means that researchers, government employees, and non-profit developers can spend time getting the job done, not scratching their heads wondering how to do the job.

3) Asking slashdot?
by heyetv
Are you concerned that tying yourself to Slashdot, a known haven for us *nix freaks that are generally hostile towards Microsoft's actions, will harm your chances of obtaining this position, as it would require that those appointing the position perceive you as "objective"?

Satchell:
No. I welcome this opportunity.

I was asked by Slashdot if I would consent to be interviewed, and I agreed. This is no different than if ABC, CNN, InfoWorld, or The Wall Street Journal had called and asked for an interview.

Let me be blunt: I believe the Slashdot readership extends far beyond the boundaries you suggest. If you look at all of the questions that earned at least a +3 score from the reader-moderators, I believe you would see what I see: a broad cross-section of thoughts, opinion, and concern about the effects of the Microsoft Final Judgement. Slashdot questions are different than those that might be posed by a panel of journalists, or a panel of lawyers, or a panel of businessmen. I welcome the questions that Slashdotters ask because I suspect, frankly, no one else will ask quite the questions you have. And those (these) questions deserve answers from each and every candidate.

I would just as readily and as eagerly answer the ten most-insightful questions from, say, a community of Microsoft Certified Engineers or the Fraternal Order of Windows OEMs.

Slashdot isn't exactly a private club, either. My answers to your questions will be read (dissected?) by a wider audience than just those who have slashdot.org in the Bookmarks file of Netscape on their Linux or BSD systems. Count on it.

4) Restrict What?
by JJ
In what areas/functions must Microsoft be restricted in order for it not to violate anti-trust rules in the future? Endless loop:(n); see Loop, Endless.

Satchell:
That's part of the Great Debate between the Microsoft lawyers and the gaggle of Plaintiff lawyers. As you may have read recently, the Plaintiffs have divided on the issue over the number of yards to penalize Microsoft. The DoJ camp feel that ten yards is enough. The California camp feel that fifteen yards plus loss of down is more appropriate, and grumble that perhaps splitting up the Microsoft team into multiple "independent" teams shouldn't be taken off the table. It's now up to you fans to voice your opinion about the call. Unlike your federal elected representatives, the Department of Justice is required by law to respond to your comments, and the judge has to take that response into account.

The Technical Committee will then work within the framework of what the judge decides. I suspect that the rules of play following the pronouncement of the Final Judgement will require some tweaking and amplification once it gets going. The Court writes the rule-book. The TC will be the refs.

The biggest area of restriction that I see is Microsoft's use of NDAs to keep secret things that would block a non-Microsoft program from interoperating with Microsoft products. Much of the PFJ waxes long on this particular subject. Information is power.

5) What Would You Do With Passive Committee Partners?
by UberOogie
What would you do if you were saddled with two other do-nothings on your committee?

Satchell:
For the purpose of this answer, I'll assume that you do not intend to imply that I would be a do-nothing. Otherwise, what's the point? There would be too many lawyers watching for a slacker to get away with it for long, I would think.

If you have never bid on a Federal contract, you wouldn't believe the amount of law that covers the behavior of contractors, and the PFJ makes clear that each member of the TC would be a contractor of the United States Government. When I prepared a bid for a Patent and Trademark Office contract, the applicable law as described in the Code of Federal Regulations ran for more than 150 pages.

The TC members had damn well better care, and work hard and fairly.

6) How tough?
by silicon_synapse
Microsoft is sure to test their boundaries and see how far the overseers will let them go. How much would Microsoft have to stray from the new regulations before you make some noise? Would you be tough and bring to attention the most minor of infractions? Or would you be more lenient and use your judgement to make sure the intent of the regulations are observed?

Satchell:
Good question. One of the nice things that the CIS stresses is that the minor stuff is intended to be settled informally. That implies to me that "the most minor of infractions" can be cleared up quickly and without any attention needed by the lawyers, let alone a judge. That's good for Microsoft, that's good for the TC, that's good for the lawyers who should have better things to do, but most importantly it's good for the outside party with the complaint because, with the dispute resolved quickly, that outside party can get back to the business of developing and out of the business of bellyaching.

Not stated anywhere (yet) is what happens when there is a legitimate difference of opinion about what the Final Judgement really means. Legitimate differences of opinion regarding the meaning of clauses in the Final Judgement might be "kicked upstairs" for resolution or clarification; alternatively, if the TC staff includes a parliamentarian a proposal could be prepared and negotiated at the TC/Compliance-Liaison level and kicked upstairs for an up-or-down decision, again quickly. That's one of the many details that would need to be determined once the Final Judgement is in place.

More importantly and implied in the PFJ is that the TC's six-month report would be able to show any pattern of tendency toward non-compliance and edge-skating, a defect in the 1995 decree that made micro-infractions, to coin a term, almost impossible to track.

7) Playing the devil's advocate...
by BOredAtWork
While the methods Microsoft has used to become an industry giant are questionable, to say the least, the fact is, they are THE industry giant now. Microsoft is responsible for a great number of jobs, conducts research that would be too expensive for almost anyone else, and MSFT is a staple of a great many investment portfolios. Assuming you would become partially responsible for ensuring their compliance with federal regulations, part of your job will inevitably become spin control.

To break Microsoft's chokehold on the industry will send their stock into a tailspin, cause their R&D cycle to slow, and cause a chaotic move for power in various niches by everyone from giants such as IBM to various smaller companies that most people have never heard of. This will cause ripples (or shock waves) in everything from the Dow Jones Industrial Average to unemployment figures to the number of dot-coms that show up and fail at trying to corner a niche to the price of new computers.

My question for you, then, is the following: If you do assume a role such that you oversee Microsoft's compliance with federal guidelines, how will you keep the ripple effects caused by your enforcement in check, and how will you justify the ripples that inevitably are created to the American people?

Satchell:
First, let me disagree in part with your first statement. Microsoft, from the beginning, had a set of axioms of operation that I believe were well-suited to the company as a start-up, served as well during its mid-growth, and led them into anti-competitive action when they became a monopoly. The axioms: "if you use it, you pay for it"; and, "we don't support products from other companies."

Some of the anti-competitive behavior described during trial was proven to be intentional and not related to company axioms, so I'm not trying to excuse Microsoft. That doesn't detract from the fact that some of their acts were good intentions coupled with bad choices, the usual paving material for the road to damnation.

Your question suffers from a touch of tunnel vision, methinks. Heikkile makes the point that Microsoft's actions go far beyond the borders and citizenry of the United States. I believe that the enforcement action that the various settlement documents contemplate will be sufficient to help everyone, not just the "American companies." As a TC member, I can put forward that anyone should be able to put forward a complaint...as long as it's in English. You can put that forward yourself, in your letter to the DoJ about your feelings about the proposed settlement.

The goal of the DoJ is to craft a Final Judgement that will stop anti-competitive behavior, reverse any gains Microsoft may have gotten from anti-competitive behavior, and keep Microsoft more on the straight and narrow in the future. The goal of the Technical Committee, as I see it, is to reduce the pain level to all involved when Microsoft strays over the line, to get Microsoft back in line with a minimum of fuss, delay, and fireworks.

I opine some more: by keeping the company intact, the PFJ doesn't upset the millions of business arrangements already in place, from developers to packagers to retailers to OEMs to volume customers. By DoJ's losing on the bundling/integration issue, Microsoft is saved from having to rebuild its operating system products and creating even more skews of its product line, which in turn saves on technical support by Microsoft and, more importantly, retraining at the OEM, retail, and IT level. In short, the DoJ/Microsoft PFJ already works to keeps the ripple effect down to something manageable, which says to me that the DoJ learned some things from its experiences with AT&T.

I repeat: the sole function of the Technical Committee is to keep Microsoft honest and to help them keep to the agreement they made with the Plaintiffs and the judgements of the Court. By doing my job to the letter, by the book, and according to Hoyle I would be minimizing the ripple effects while permitting Microsoft a chance to continue to do what it has done, bring product to market, and let the marketplace decide thumbs-up or thumbs-down.

8) To boldly go insane....
by jd
This may seem like a really obvious question, but how do you propose to oversee an organization the size and complexity of Microsoft, by yourself and maybe two others?

Microsoft has managed to avoid scrutiny by companies, courts, governments and even users. Many allegations made in the trial, such as "knifing the baby" remarks alleged by Netscape, would simply not be visible, by simply looking at Official Policy Documents. In fact, probably very little actual policy DOES appear in their Official Policy Documents.

In short, you can't hunt ghosts with an electron microscope. You need knowledge of what the right job is, and then you need the tools to do it.

Do you even remotely imagine that this is even possible?

Satchell:
It's obviously impossible. You're right, policing at the level you describe is a task too large for even 300 people, let along three. I doubt it's desirable, either. That would be like having your very own cop sitting in the back seat of your car every time you drive, writing a ticket every time you rolled a stop sign or cut a left turn (right turn for you Brits) too close.

If you read the Competitive Impact Statement, you will see that it contemplates that the Technical Committee will be complaint-driven. Because the process for the complaint (not yet defined, by the way) should be less onerous than filing a lawsuit with the 800-pound gorilla, people who feel that Microsoft has violated the agreement with respect to them will file complaints.

As suggested by the CIS, the TC will have to do some kind of triage and prioritize the complaints, and group like complaints together. Then they will investigate the complaints and work with the Microsoft Compliance Liaison Officer to see if there is a simple fix for the problem. If there is, the fix is put in place and the file closed and logged.

And if it can't be fixed? The TC reports to the Plaintiff committee, providing all information available about the complaint. It's then up to the Plaintiff committee to decide what to do. It could be as simple as a lawyer-to-lawyer phone call and directions to the TC and the Compliance Officer. It could be as complex as a special court hearing. Who knows? But all that stuff is above the TC's pay grade.

The PFJ anticipates that the TC may well need a staff. This wouldn't be a large staff, and would be sized according to the load. No, I'm not taking resumes... :)

One reason I suspect that the members of the Technical Committee must be "experts in software design and programming" is to minimize the "staff effect" that cripples the decision-making process in many oversight committees. If the members themselves have the background to understand the underlying issues, to judge the clues found in the source, books, and memos, and to assimilate the Microsoft technical and non-technical response, you eliminate the mini-trials that are the hallmark of the operation of many government regulatory boards. You also eliminate the exclusive judgement of staff, people who do not take the heat for their decisions like a member would or should.

9) The obvious question...
by Stonehead
Where lies in your opinion the boundary between anti-competitive functionality and "improving the users' experience"? By now, everybody is used to bundling a browser with the OS. But what about video-editing software? The (Sun) Java VM or the .NET Common Language Runtime? Passport? etcetera..

Satchell:
As a member of the Technical Committee, my opinions in this matter are, frankly, not applicable. Other people decide the policy, the TC just implements the policy as set by the judge. But it's an interesting question, and I'm happy to take a stab at it. To wit, my opinion:

Richard M. Stallman asked the right question a long time ago: "If it's broke, how do I fix it?"

There is a BIG difference between "bundling" and "integrating" user-land applications into an operating system. If Microsoft wants to bundle a DVD-ROM full of stuff with Windows 2006, I say more power to them...as long as I don't have to have any part of Windows Recording Studio in order to install Syntrillium's CoolEdit as my multi-channel wave editor.

On the other hand, Microsoft has to be able to test and support functionality that the users want, or say they want. In the enterprise environment, the ability to install patches from a central facility is a real boon to the Information Technology department. Integrating everything together reduces the technical support headache for Microsoft. If it reduces the time for a tech support call, that's money saved, either for Microsoft for warranty support or the user if he or she is buying by-the-incident support services, or for the IT department if it provides its own support. Fewer variables.

And that is where "competition" and "user experience" clash. The optimal solution from Microsoft's perspective is also anti-competitive, not because they are worried about sales but because they are worried about tech support cost. The optimal solution from the perspective of Big Business is to standardize on a single solution that can be deployed, and if Microsoft's solution doesn't do the trick then Big Business will find someone else who can do the trick. The optimal solution from the perspective of the home user is that something happens magically. The optimal solution from the perspective of the SOHO user is to have none of it, because the SOHO computer is an attractive target for the Black Hats and the SOHO user doesn't want to have to spend $2K on a super-tricked-out firewall appliance between his computer and the outside world.

If it's broke, how do I fix it? Any solution MUST answer that question, for all users.

10a) Corruption?
by jamesidm
What is in place to prevent Microsoft from potentially bribing you or other members of the committee? Would you turn down 7 figure offers for the good of the computing community?

-- plus --

10b) Re: Corruption?
by Odinson
Perhaps I could elaborate with my intended question.

Do you think board members should make themselves available for financial audits?

If so...

How deep into the board members lives can the audits go and how long after their stay on the board should their financial records be reviewed?

Satchell:
The Technical Committee has a report it has to file every six months (every month if I have any say) that details what it's done and the rationale it used for its decisions. An experienced lawyer is very, very good at seeing BS in reports like that.

And now for something I don't expect anyone here to believe: I've turned down bribes while I was a product reviewer. I turned down money. I turned down sex. I turned down neat toys. Several of my colleagues said I was a fool to turn down all that stuff - indeed, I have a long-running feud with a well-known writer over the importance of the appearance of being ethical. He tells people I commit "fiscal suicide." (Don't worry, I have equally nasty things to say about him. It balances.)

Ever been fired from a job because you couldn't lie? I have. Now you know. (Hint: it wasn't a magazine that wanted me to lie. Not that I would.) I'm just not good at lying. In order to be successfully corrupt, you have to be able to lie convincingly. I don't have that skill.

I expect that as a TC member I would have to file financial disclosure forms, that indicate major sources of income plus investments. I filed these as a journalist and as a reviewer, so I don't have a problem with that.

As for audits: people, please! This is the UNITED STATES DEPARTMENT OF JUSTICE we are talking about. If DoJ suspects ANY problem, they have an in-house investigative arm that you may have heard of: the Federal Bureau of Investigation. With the power to probe into any aspect of my life that they choose.

===

That's it for your ten questions as selected by Slashdot editors. There were other good questions that I think deserve a response, so I'll lump answers to them in the next handful of paragraphs.

First, in my lab I run 14 systems variously populated with Windows (98SE and 2000 Pro), Linux (Slackware and Red Hat), and MacOS (8.5) on a 6400. I have a couple of Sun boxes loaded with Solaris, too, but they aren't running right now. All but one Windows system dual-boots Linux. I have an early BeOS CD-ROM, but it's been a while since I loaded it. My 286 box has QNX on it, but that's been powered off for a long time. The last MS-DOS box bit the dust last year. I switch between operating systems frequently, choosing the one that is best suited to do the job that needs to be done. The general-purpose Linux boxes all have SAMBA, and one of those SAMBA boxes is my Windows domain controller. (I'm trying to get HP to give me Linux software to make my Network Scanner 5 work with my Linux domain controller - no luck. Anyone at HP listening?) I may be forced to load the copy of Windows NT Server I have on the shelf, or I may put the newly-acquired HP Kayak into that service. The house is wired with 100-base T, and there are a couple of ethernet switches to break up the collection into logical groups.

I have written software for resale that runs on Ultrix, SunOS, Windows, MacOS, Linux, MS-DOS, and Hunter & Ready's VRTX. I have written operating systems for embedded products, and worked on operating systems all through my 30-year career.

Some high points: Worked on ARPAnet while at University of Illinois. Software and system design for embedded-computer products at Rockwell, Recognition Equipment, Addressograph-Multigraph. Benchmark writer at InfoWorld. Technical editor at InfoWorld. Built modem test lab at Ziff-Davis Labs. SPECmark member via MacUser magazine (did SPECmarks for early 680x0 Macs). Editor of the modem testing standard for TIA (now EIA 3800). Reviewed and wrote about more than 600 products in over 400 articles. Wrote Linux IP Stacks Commentary for Coriolis Books. Work at the annual Glenn Tenney THINK conference. Cameraman for local PBS station. Test Manager at Motorola ISG on the soft-modem project. Ran BBSes, BIX Telecom Exchange, assisted with CompuServie IBMSIG. Wrote, sold, and supported OTTO suite for analog modem testing.

I have never worked for Microsoft or any operating system vendor in any capacity, technical or non-technical. Microsoft and its direct competitors, directly or through PR representatives, have never paid me a dime, given me a T-shirt, or gifted me with a logo-bearing yo-yo. All Microsoft products that I've gotten through the years were purchased, bundled with systems, or were evaluation units (clearly marked "not for resale") provided to me in my capacity as a member of the working press and obtained through [Microsoft's PR agency] WaggEd .

Some yahoo bitched about how obtuse my contribution to W3C was. My training as a writer taught me how to write to an audience. That contribution - a formal response to a W3C position paper - was written in Standard-ese. I hope the bozo sees the difference between that paper (written for stuffed shirts) and this little tome. Don't like it? Write me.

Remember the Cyberporn story Time magazine ran in 1995? A bunch of us on alt.internet.media-coverage who work in the press fumed and fumed about that story. After much discussion, and many complaints from others who fumed that we were taking over the newsgroup, we decided to form The Internet Press Guild as a resource to mainstream press people who got an Internet beat without knowing much about it. So far, nothing as bad as the infamous "Rimm Job" has hit the mainstream press since we started.

I was an OS architect a number of years ago, so I understand the mind-set all too well. Grew out of it, but I remember the feelings, the attitudes, the arrogance. It helps to understand the organization you are about to oversee. Microsoft is one of the few organizations I have ever encountered that exhibits the mind-set, behavior, and mannerisms of the OS architect.

If I don't get the job, I'll just continue doing what I'm doing today. If the TC that is selected does a bad job and the computer industry craters, I'll seek out a new career. It's that simple.

That should do it. Now some of you know just a little more about me than you did before.

PS: To be complete, I should mention I'm not the only one with my hat in the ring. John Dvorak announced his "candidacy" in his November 2, 2001 column in PC Magazine. You need to talk with him about his qualifications for sitting on the Technical Committee.

You can't help but know that Microsoft and the Department of Justice (plus several of the states that joined in the suit) are attempting to settle their antitrust dispute. The rest of the states are holding out for a settlement with more teeth, or a continuation of the case. A few links from the past few days: The LA Times looks at the states still opposing Microsoft. Microsoft defended the settlement before a Senate committee, which was crippled by political maneuvering (see also the NYT story). The speech given by the CEO of Red Hat is online. Microsoft filed a brief with the court, unsurprisingly urging the court to accept the settlement. The Register has a story on the proposed settlement, which is available at the DOJ Antitrust website. Linuxplanet has some advice for people who want to comment on the settlement - you've got 60 days from November 28. Finally, Microsoft has named two people to help it comply with the proposed settlement.

Drek was among the many who wrote in to tell us about the following: "Wired is running an article about how the MS/DoJ settlement was reached. More importantly, the DoJ has set up an email address where citizens can send comments about the case: microsoft.atr@usdoj.gov. This might be a good way for Slashdotters to do their civic duty."The address has been around for a bit, but still, a renewed call for comment.

PacketMaster writes: "Somthing that I didn't know, and perhaps many others didn't know is that now this settlement by the federal government and some of the states will go back before the judge and be opened for a 60 day commentary period by the public as required by the Tunney Act (See Sec 5,USC Sec 16). This is a great opportunity for everyone to send in their intelligent and informed opinions on the matter. If some of the major developer groups (i.e. Samba) would put together a well-thought-out and easy-to-read commentary on their concerns, maybe we as a community can affect the process. See the ZDNet article for more information." No forum for public comment is up yet (first, the proposed settlement must be published in the Federal Register), but should be in the near future.

There are various news articles out at most major news sites, but they're all based on this press release from the Department of Justice. The actual terms of the settlement will probably become public shortly, so I wouldn't spend a whole lot of time trying to dissect this press release. Just read it for generalities. In sum: for this whole multi-year case, which you will recall started when Microsoft refused to obey its earlier behavior restrictions, we have more behavior restrictions, lasting only five years. And if MS doesn't obey those, they'll ... be in effect longer. Update: 11/02 15:07 GMT by M : Here are the promised terms of the settlement. Now you can dissect them. :) Update: 11/02 15:53 GMT by M : The states are refusing to sign on.