Slashdot Mirror
Response To The USDOJ-Microsoft Settlement
icanoop writes: "I haven't heard much about whether or not people are taking advantage of the Tunney Act and commenting on the settlement. Here is my letter to the DOJ in pdf and html. Remember these are my opinions, I'm not trying to represent open source or anything. I hope it will inspire others to send comments to the DOJ."
Nice dude. Looks quite thought out and organized. One hopes that the DOJ doesn't simply ignore it as the speak of some "Linux freak" or somesuch nonsense. They really need to take this seriously and hopefully the rest of us can (or I should say, "will") do someting similar. There are an insane number of /. readers who should be able to influence decisions such as this. There's got to be something that 1million+ people can do! (That's just a guess, I'm member 444K and something, and I have no doubt that I wasn't the last to join).
Cheers,
jw
"Has anything you've done made your life better?" - American History X
http://www.usdoj.gov/atr/cases/ms-settle.htm
to finally get off my ass and send my own. I'm mailing it via USPS, but I'll also email a copy to make sure it gets there before the deadline in early January.
6 3. htm}, the proposed settlement
. htm}, the Competitive
. htm}, as
Here's mine:
\documentclass{letter}
\begin{document}
\address{Robert G. Ristroph \\
11612 Hidden Quail \\
Austin, TX 78758 }
\signature{Robert G. Ristroph}
\begin{letter}{ Renata B. Hesse \\
Antitrust Division \\
U.S. Department of Justice \\
601 D Street NW \\
Suite 1200 \\
Washington, DC 20530-0001 }
\opening{Dear Ms. Hesse,}
I am writing with regard to the Justice Department's proposed settlement with
Microsoft. I believe that this settlement should be scrapped and completely
rewritten. Most of the ``restrictions'' placed on Microsoft are already
illegal; what few restrictions are left are impossible to enforce and seem
designed to produce more legal disputes rather than resolve them; and the
proposed enforcement mechanism is a ludicrous embarrassment. In addition to
scrapping this proposed settlement, any payment or further employment of the
authors should be re-evaluated in light of this idiocy.
I have read the original complaint of United States and the several States at
\texttt{http://www.usdoj.gov/atr/cases/f1700/17
at \texttt{http://www.usdoj.gov/atr/cases/f9400/9495
Impact Statement at \texttt{http://www.usdoj.gov/atr/cases/f9400/9495
well as numerous other sources including the findings of fact and other
documents.
My own injury by Microsoft's illegal actions comes from Microsoft's agreements
with OEM's which forced my employer to pay for Windows when buying a new
computer from Dell, which we had no plans to use Windows, intending it for
Linux. This was supposedly addressed in a prior case to the present one, and
yet to this day the same hardware without a Microsoft license has the same cost.
I wish to examine the elements of the proposed agreement item by item, and then
propose an outline of an alternative settlement.
A. That Microsoft will not retaliate against OEMs for distributing non-Microsoft
software. This is already prohibited by law, given Microsoft's monopoly.
The proposed settlement can not consist of Microsoft agreeing to follow the
law in the future; like other companies in the United States, it has to
follow the law regardless of this settlement.
B. That Microsoft make public it's licensing agreements and offer the same terms
to everyone. This is the only part of the proposed settlement makes sense,
however, OEMs have shown in the past they were willing to collaborate in
Microsoft's illegal activities. Should Microsoft offer an OEM a secrete
payback or special deal, the cooperation of the OEM will make this section
difficult to enforce.
C. That Microsoft cannot restrict certain OEM software through agreements. This
is already illegal, like A.
D. Some meaningless nonsense not worthy of comment or the paper it is printed
on.
E. That communications protocols in Microsoft software be publicly available.
In light of Microsoft's previous behavior in exploiting secrete calls in
it's software, all of it's source code should be available for public
examination. The suggestion that only ``communications protocols'' be public
is problematic because it leaves open to dispute what consists of a
communications protocol. This is foolish given Microsoft's previous
self-serving interpretations of court orders.
F. That Microsoft will not retaliate against software vendors for competing
against them. This is already against the law given that Microsoft is a
monopoly.
G. That fixed percentage distribution agreements be banned. This is already
against the law. The exceptions listed in this paragraph are also against
the law, creating the suggestion that the United States will enter into an
agreement with Microsoft to allow it to break the law in some cases.
H. That OEMs and users are allowed to configure the Microsoft software they
buy. This is vague and confusing because it is difficult to precisely
describe what consists of configuring software, and thus impossible to
reliably enforce. In a competitive market it would be the natural case, and
the proposed settlement should focus on restoring competition.
I. That Microsoft offer licenses to ``intellectual property'' necessary to allow
others to exercise ``alternatives provided under this final judgment.''
The reference to alternatives provided to others contradicts the final
section of the proposed settlement, which explicitly denies that the final
settlement gives any rights to third parties. Even aside from that, this
section probably denies behavior already illegal, is riddled with
exceptions, vague, and seems designed to produce legal action rather than
remedy.
J. A section devoted wholly to exceptions for Microsoft, as if there where not
enough already.
The Enforcement Authority:
A. Access to source code is probably one of the best remedies. The exceptions
and limitation of this access to a committee are silly.
B. The Technical Committee. It has too few members, it should be composed of
Officers of a United States Federal Court in order to make it's requests
immediately enforceable through Contempt hearings, and the gag on public
statements renders the whole committee useless. The further restriction that
the testimony of this muzzled and hobbled committee not be admissible in
court is a bit like shooting the deer after it's tied down with it's throat
cut.
C. The Microsoft Compliance Officer. This section is nonsense. Other
companies manage to obey the law without the use of a special office. If
Microsoft needs one they can implement it without a judgment.
D. Voluntary Dispute Resolution. This section seems dedicated to stipulating
that various parties send each other letters before seeking court hearings, a
common practice. 4(d) guts all enforcement power from the proposed
judgment, and suggests that the Attorneys for the Justice Department don't
believe in their own system of courts.
Third Party Rights:
This section is in contradiction with other references to the submission of
complaints to the Technical Committee and the requirement that Microsoft offer
``intellectual property'' licenses to the third parties so that they can pursue
the alternatives guaranteed them in this proposed final judgment.
In summary, this proposed final judgment is a poor sham for a capitulation by
the Plaintiffs. It's not even a good surrender, because it's vagueness and
self-contradictions guarantee more legal action; if we must capitulate, at least
we should save on legal costs. It also completely fails to disguise the
capitulation in any way. This is why whoever wrote it should be fired, even if
the Justice Department unwisely chooses to fail to enforce the law as applies to
Microsoft.
A real final judgment, which might have the chance of remedying the situation,
would have to be in some way ``self enforcing.'' By ``self enforcing'' I mean
that the remedy by it's nature should preclude further legal wrangling and
evasion efforts by Microsoft. Stipulations on Microsoft's future behavior
inherently have to be enforced, and thus are not well suited to this case.
Furthermore, when the proposed judgment stipulates that behavior already
illegal be banned and then suggests exceptions, the Plaintiffs are acquiescing in
further law breaking by Microsoft.
An example of a ``self enforcing'' remedy would be denying Microsoft copyright
protection. No Technical Committee is required; all that is needed is to reject
out of hand cases of copyright enforcement that Microsoft brings. Thus,
revoking copyright privileges for some portion of the works that Microsoft used
to violate the law might be an appropriate remedy. Or perhaps Microsoft could
post substantial bonds against it's future behavior.
Many of the major flaws in this proposed final settlement result from the
needless use of vague and disputable terms, when simple and undisputable ones
would do.
Replace all references to ``Microsoft Middleware'' ``Windows Operating System
Product'' and such with the simple phrases ``products of Microsoft'' and
``products of third parties.'' Avoid even the use the term ``software
products,'' as Microsoft would produce hardware required to run their products
and then violate the agreement. Be sure the phrase ``products'' is defined to
mean anything Microsoft does, including services.
Replace all references to ``ISVs, IHVs, ICDs, OEMs'' and such with the phrase
``any third party.'' Quibbling over which member of the alphabet soup a
particular entity fell under is thus eliminated. The final judgment should
require no differentiation between the various consumers and companies
interacting with Microsoft. This also remedies the fault that the current
proposed judgment allows Microsoft to exempt any third party from the benefits
of what legal behavior is required by claiming they do not have a viable
business plan.
I hope you find these suggestions helpful in writing a real judgment.
\closing{Sincerely,}
\end{letter}
\end{document}
I think a more realistic goal to hope for is the removal of all copyright privildges (i.e., it would enter the public domain) on particular pieces of code that were part of an illegal action by Microsoft. For example, it is conceivable to immagine a court rulling that because Microsoft illegally tied (using technological means) X version of IE and X version of Windows95, the source code for those works will be removed from copyright and allowed into the public domain just as if the copyright had expired.