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Ask a Legal Expert How MS Ruling Affects Open Source
By now we all know about Judge Kollar-Kotelly's decision in the Microsoft antitrust case. The effect of this ruling on Linux and Open Source use and future development is not yet clear. For those of you who have been wondering about this, we have a special interview guest: Attorney Lawrence E. (Larry) Rosen, Linux Journal's popular Geek Law columnist, who is surely one of the best-qualified people in the world to answer questions on this topic. (Usual Slashdot interview rules apply.)
... Do we have a chance?
My first feeling after reading the slashdot report of the results was that Microsoft lost. APIs and information should have to be released.
But I read amazed the press and the media in my country (spain) and all of them agree that Microsoft Wins.
Who won ?
From an analysis from the register I'd like your opinion on the committe being appointed.
Here's a snip from
http://www.theregister.co.uk/content/4/27913.html
And it's a good thing that Microsoft helps choose the people who will police it, explains the Judge:
"...the committee will likely foster an environment of cooperative resolution, rather than one of persistent conflict and litigation. Otherwise, attempts at enforcement have a greater potential to take on the tenor of adversary proceedings, resolved in most instances with great difficulty and delay."
With Microsoft pretty much doing what they want these days, do you have fear that their Palladium project could be a real threat to Linux and other free-software projects, if MS try to force it upon their installed base ? What will be the best way to fight Palladium ?
I have heard in various other cases that if a copyright holder uses his copyright to commit antitrust, they lose the ability to defend their copyright.
Clearly, Microsoft has been found guilty of using its copyright on Windows 95 to kill Netscape.
Is is possible for a pirate to successfully defend himself by claiming Microsoft has lost its copyright? (I assume this applies to only that software specifically mentioned in the case. Not all software produced by Microsoft)
The decree permits Microsoft to avoid publishing APIs for security reasons, and permits them to release API docs on a 'reasonable and non-discriminatory' basis. How much do think Microsoft will be able to get away with concealing authentication components of protocols on the security exemption, and how much will they be able to use the RAND provision to ensure that open sourcers never see the APIs to things (e.g. filesharing, Active Directory) they need to interoperate with?
Steve
I'm all angry about the agreement giving free reign to MS, but I'm also worried about its (posssible) effects on other software monopolists. Does this case set a precedent that says: "software companies don't need to pay attention to anti-trust laws"?
In the settlement it talks about MS having to disclose information only to companies with a sound business model that meats critera set out by MS. Where does OSS fall? Can MS say OSS is not up to its standards and therefore not release the code?
Additionally what effect will MS's right to charge have on OSS? Can MS only charge for developers to see the code or are they entitled to charge royalties for the implementation of the code? (Can you legally reverse engineer a software having seen the code?)
Mr. Smoove
Take a look at this article at the BBC as an example of the pro-linux swing being evidenced in the non-geek media.
Will this ultimately do more damage to Microsoft than anything the US DOJ could do?
--is not to be confused with user #672982 - Bame Flait
What is being put into place to insure that Microsoft actually hands over real code? I mean really. We've got legal consul that doesn't know jack about code trying to, possibly, enforce somehting that they know nothing to little about. Microsoft could hand over out of date code, partial code, bugged code, and any number of other variables on the "truth" and legal guys would be none the wiser.
- - - - Irony? Yes, it's life everyday. May the Quanta laugh.
The Register's coverage brought up an interesting question that I wouldn't mind seeing answered: can people who made stock deals based on the leaked decision, before it was officially posted (which of course was supposed to be after the close of markets) be prosecuted for insider trading? My gut tells me they can't, because it was the Court's screwup that leaked the decision, but the SEC might not agree ...
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
I doubt it. But in about 3-7 years from now when she retires, she will almost certainly pick up a very lucrative job at MS. Look at ashcrofts daughter who works for MS. I suspect highly that Bushes friends will also have jobs at MS if wanted.I doubt highly the family will work there though. They can do much better TX or washington.
The reason for this is that we already know that Microsoft has been violating the agreement, virtually from the moment they agreed to it. This does not give me confidence in any monitoring team's ability to enforce it.
My second question (ha! snuck this one in!) is: How does this affect the ability for Open Source groups to re-implement Microsoft APIs for Windows?
Again, we already know that Microsoft has added hidden checks to verify a given DLL is authentic Microsoft, rather than a 3rd-party clone. However, with no legal requirement to modularize (and therefore legal permission to mangle things up too much to re-implement), it would be very difficult to prove in court that a given technical issue was a product of a coding error or an agreement violation.
Ok, one more question. What's to stop Microsoft from releasing a Windows+, which is "not Windows" in the same way Windows98 wasn't Windows95, thus voiding the entire agreement?
Frankly, I don't think this bodes at all well for ANY competitor to Microsoft. Too many loopholes, and too much squelching power. It's about the same as playing "Lemmings" with a high-power plasma cannon. There cannot be any realistic opposition.
(Last, but not least, if the legal expert -does- start their reply with "IANAL", I'd have a hard time being surprised. We live in "interesting times", and reality is taking a long lunch-break.)
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Now that Microsoft has effectively gotten away with maintaining and extending it's monopoly, how do you think open source projects that are competitive to Microsoft (Samba, WINE, Crossover plugin, OpenOffice etc) are going to survive any legal assults? It would seem easier to kill off an open source project as they are typically not (officially) associated with a company, nor have any serious resources other than perhaps the goodwill of the user community.
As a friend said, there's nothing like getting away with murder to encourage you to start killing more people.
Just how much of their remaining undisclosed APIs does Microsoft have to make public? I found the judge's references to this issue quite confusing; in one place she said that MS would have to reveal all of its "communications" protocols; in another she ruled that MS wouldn't have to reveal anything that pertained to such topics as "encryption" or "digital rights management". Isn't it possible for MS to claim that existing or future new APIs for Windows would fall into the latter category, and thus allow them to keep much of it in the dark?
My followup question is: what mechanism did the judge set up for determining whether an API should be public or not?
Always look on the briight side of life! (whistle, whistle)
Other industries that expose network effects are specially regulated (e.g. telecommunications). Do the results of the MS case show that we also need sector-spefic regulations for the software industry? Is general competition incapable of dealing with these kinds of problems?
So the bigest things that I think many of us were looking for is for MS to be in a way forced to reveal and make available cratian information needed for inter-operability. Was this achived or are we still locked out? For instance can the samba team get the information they need form MS to build a better CIFS implimentation?
Power Corrupts,Absolute Power Corrupts Absolutely, leaving one person(group)in charge is absolutely corrupt.
It sounds a very open ended authority that grants the judge broad powers over all aspects of the settlement. Can the judge use this provision to broaden the scope of the agreement or to force Microsoft to use a particular intrepretation of some clause, for example the security exemption or the viability clause.
Or am I just a geek grasping for straws.
As we probably all know, a clause in the settlement limits Microsoft's disclosure of APIs to only those not security related.
Is there any legal device that prevents them from, say, distributing some security procedure over all the APIs, thus limiting their disclosure to nothing?
Section J explains what the judgement doesn't intend to do. In J2 it talks about not putting conditions on Microsoft about how they'll be licensing the APIs and protocols to third parties then continues on in J2(c) say that the third party may be subject to conditions set by Microsoft that the third party:
meets reasonable, objective standards established by Microsoft for certifying the
authenticity and viability of its business
So, does that mean that they can refuse the APIs and protocols to Open Source projects claiming that they don't consider them viable business models?
In the other sections it points out the Microsoft is not allowed to be discriminatory, so which one overrides the other?
put the what in the where?
From what I read of the decision (yes, I tried to wade through a significant chunk of its hundreds of pages) Judge KK seems to justify many of her points by saying that the remedies suggested by the dissenting states do not address the fault that was established. That is, for instance, forcing MS to auction the rights to port Office to Linux has nothing to do with the fact that MS used its monopoly power to squash Netscape, etc. That is, anything not directly related to the theory that MS felt a threat from middleware with cross-platform abilities is out of bounds as a remedy. (First question then might be: Is that an accurate description of part of her reasoning?) In some instances, what she says sounds right to me and in others it seems like she needs to re-read the findings of fact.
Another reason she seems to like for rejecting proposed remedies is that they would "help MS's competitors but not competition". This distinction seems slim. If that really is required of any anti-trust remedy, then is anything other than breaking MS up even a potential remedy?
Most importantly, given the narrow ways she uses to reject the proposed additional remedies, didn't she leave open the possibility of the success of a brand new anti-trust suit that does address the other ways in which MS has abused its monopoly power? (Like for instance, wouldn't Sun's additional anti-trust suit have a good chance?) But, given how long these trials take, won't Microsoft's strategy of prolonging the process wind us right back where we are, where any remedy applied so long after the fact makes no real difference? And then if that's so, while her remedy might be legally defensible, it would also serve to graphically illustrate the impotence of our anti-trust laws, no?
BWCarver
Like Digital Freedoms? Then donate to EFF before they're gone.
I refer to licensing designed to block usage of the GPL- and more than that, the attempts through the Shared Source license to produce a population of coders with built-in vulnerability to Microsoft legal attack (the admissions of being privy to MS proprietary information, the abandoning of patent rights etc)
How much of this will they have to immediately change because it conflicts with the Judge's requirement that they not be discriminatory? It happens to be central to their strategy, and I can't believe this discrepancy will go un-noted.
So, How Does The MS Ruling Affect Open Source?
Things you think are in the Constitution, but are not.
My question however, is, if you look at this decision from a Business perspective, how does it fall? Is this decision in line with existing case law when it comes to dealing with individuals and corporations who have come to exercise huge amounts of power over their various sectors of the economy? Was this decision made with the intent of strengthening the overall business climate of the US, especially given the current state of the world economy? Will it make perfect sense to the average CEO?
Your Servant, B. Baggins
What I mean by that is realizing that
1. Open Source has bound itself (willingly or not I cannot say) with Free Software. I see a fundamental difference between the two as OpenSource is more of the Scientific approach of having a peer reviewed research and development platform, where as (self admittedly) Free Software focuses on making *all* software free as a public domain/service
2. Many open source applications have been developed with the purpose of allowing those who would not normally have the skills to circumvent "IP protection measures". That is, P2P, an adopted open source initiative has Free Software ties because the "information" that P2P networks choose to distribute are for the most part Close Sourced or Copyrighted material.
3. Closed source companies (like Microsoft) and Copy righted companies (like Vivendi) Have both used the arguement that *OPEN SOURCE* software is the cause of the loss of revenue and piracy and have implemented protection schemes that *must be* protected by proprietary closed source mechanisms in order to protect the revenue stream of those coutries
4. Companies will continue to deny legitimate opensource companies access to their API because they incorrectly bind open-source develpers with Free-Software developers (while one may be the other, both may legitimately exist independently of other that is, not all oss devs are freesoftware devs and not all freesoftware devs are oss devs).
5. Legislation looms that would prohibit Open Source to be developed on any commercial level and even make it illegal to own and distribute open source based hardware *because of those who would use propietary software without paying for it* who feel they have a right to another's work without compensating the creator.
6. Those legislators (rightly or wrongly) see open source as a breeding ground for hackers and information pirates, and do not seperate law breakers from the rest of the group. eg. You never hear a *rogue* OSS developer getting arrested on DMCA charges, the same way you hear of *rogue* ceos or *rogue* scientists acting in a way that disgraces the community.
So really, is this a question of those who have steered open source away from its roots to be a campaign for free software? And how will traditionally open source companies (or) individual developers access the blueprints if MS can conveniently label them as software pirates or illegitimate institutions undeserving of access to its API?
http://cincyboys.blogspot.com/ Everything Cincinnati. Including the word 'Finnih'
In my opinion one of the biggest victories against Microsoft in this judgment was the establishment of a uniform price schedule. No more special bait-and-switch deals. However, it occurs to me that this could actually hurt some businesses more than it helps. How do you think Microsoft will respond to this requirement and how can open source use this to its advantage?
This space intentionally left blank.
If US justice fails us against the MS monopoly, how can European court take over the battle? What are the legal mechanisms Europe could use to enforce its own ruling?
Given the much harsher penalties (breakup, etc) that many people were calling for, and given Microsoft's record for behavior, do you think that Microsoft will indeed cease their monopolistic behavior, or do you think that they will take it as yet another slap on the wrist and continue to use their position to leverage an unfair advantage in the industry?
I pledge allegiance to the flag...
of the Corporate States of America...
Yes, everyone seems to be focusing on the viable business thing, with good reason. The wording is ambiguous at best and I am not a lawyer. I'll go out on a limb here and guess that you aren't either. I'm asking a lawyer his opinion on the wording, as he is trained in such things. You're question about remedies is written right there in the judgement; but you're question about the 'security carve-out' is one that does need addressing. However, just because you think you know what J2(c) means, doesn't mean you do (the wording is ambiguous at best and leaves plenty to interpretation) and doesn't mean that it's not a valid question that we should be posing to a lawyer.
put the what in the where?
Microsoft has a history of making settlements like this and then doing everything that can to weasel out of it. So I'm wondering if this agreement is really going to set up a framework that effectively keeps Microsoft in check. Even if the framework does support this, do you believe the justice department will be aggressive enough with its enforcement to take advantage of it?
Microsoft seems to be playing the part of the spoiled child here. The parents keep saying he's doing bad things and that he should stop, but they never back up their threats with effective action. I can't imagine Microsoft changing its ways anytime soon unless this agreement is actually setting up significant consequences for them.
This sig has been temporarily disconnected or is no longer in service
Since the feds are acting in the name "of the people". This may appears to large class action suite. So citzens can request not to be part of the class... then could we:
Get a sub-class to sue DOJ & Microsoft for violating the public trust and get judgement set aside.
Group of citzens to appeal the ruling for failure in addressing the concerns of the public, supplied during public comment, by adjusting the agreement to meet those concerns.
When (other than 'never') will the legal profession (particularly judges) admit that their lack of technical expertise is doing damage to the rest of us?
I'm not sure it does.... During the last election, voters in Washington state tossed out an incumbent Republican senator, Slade Gorton, who was informally known of as the "Senator from Microsoft". In his place, they elected a Democratic senator, Maria Cantwell, who is rapidly becoming known of as the "Senator from Microsoft". <wry grin> (And also known of as the Real Networks VP largely responsible for Real's record as an unrepentant spammer and abusive marketer.) :/
IMHO any assumption that a vote for the Democrats is going to help the situation with Microsoft is unsupported by the evidence. Look at the records and views of the individual candidates, and vote for the individual candidates whose track record and express views are most favorable to preserving a truly free market.
(And, no, this isn't a sneaky post urging you to vote Libertarian instead.) ;>
Catherine
I also would point out that this cases was going downhill long before Bush became President.
In what way? When Bush came into office, MS was in deep trouble. Jackson made a judgment error on his conduct and that was exploited to allow for the new DOJ to take advantage of the situation. Ashcroft was then able to do what he was paid to do; to negotiate this into nothingness. Other than Jackson's mistake, this was a truely closed case.
BTW, look carefully at this settlement. There really is nothing that hurts MS in any way, shape, or form. It allows MS to keep doing what they have been doing as there is now precident for no legal or punative damages. MS can persue all the actions that they like, against any company that wish, and whenever they run into real problems, they simply buy their way out again.
I work at an ISP as technical support. I've helped several people who don't read licenses, and several more who get defensive whenever I say, "I'm going to have to change a setting on your computer."
Millions of computer users assume that they own their computer, as well as everything on it. They don't understand the concept of software licensing, and most would probably (Strange, but true) give up using a computer if they discovered they didn't own everything on it.
The whole reason license agreements have become terrible for those of us who read them is because of the vast majority who don't. Software companies have an easy time adding clauses to their license agreements, because most people don't read them. It reaches a point where what people are agreeing to, and what they think they're agreeing to, become two separate animals.
If these were physical, handwritten contracts, there'd be all sorts of legal battles citing extortion, but, last I checked, there haven't been any competent lawyers arguing that extortion is possible online.
For reference, ask an old-time geek about GIF and the LZW patents.
I'd really like to see a business demigod declare that software-licensing can become restrictive enough to be considered a "cybercrime."
A good first step? Take two graphs, both of which would be "restrictivity vs usercount" contract comparison graphs. One graph would be for some highly competitive market (like loans or mortages), the other would be for major software products like office products.
Unfortunately, I can't think of any way to graphically represent the choices for initial software that people have when they buy their computers.
What's this Submit thingy do?
Is it possible for open source individuals to argue that the nondiscriminatory clause does in fact discriminate against them if they are forced into non disclosure agreements or monetary licenses in order to get access to APIs. Since a charge or non disclosure agreement would prevent most open source software developers from gaining access to this information can it be considered to be discriminating since Microsoft Corp. understands that this will prevent open source development.
Also using the term nondiscriminatory does this mean that if Microsoft were to release API's and details to other companies that they consider to be not for general publication because of "security" reasons is this discriminatory and therefore not allowed as well. In other words can Microsoft allow some but not others access to "security" API
s and information?
This post and these questions are made assuming Microsoft is the antithesis of Open Source. If Microsoft has a good day, open source has a bad day. If Microsoft loses, Open Source wins. In this light, any question about Microsoft can be seen as relating to Open Source Software.
From no point of view does the judge's decision make sense. Microsoft is as large a company as there ever has been, and they've gotten that way by screwing people (Microsoft tax on OEM machines), other companies (Microsoft Java VM, etc) , and the government (billions wasted on NT) at every turn. As large as they are, one could speculate that turning this case against Microsoft would devastate the economy (if one were a fool, of course). Is it possible that the ruling was made in favour of Microsoft in order to not dent the economy? Whether or not this was done, nobody with any sense expects Microsoft's tactics to change, so when this court case comes around again next time, how difficult will it be to make a case, considering that Microsoft doesn't have to turn over documents they judge to hold IP, coupled with the precedence this case sets?
With Microsoft's won-loss record in the courts, what would occur if they tried to step on the GPL (a prevalent license of Open Source Software)? If they defeated the viral parts of the GPL, would the entire license be void, or would just the viral parts be NULL? Finally, as a not-a-lawyer, I can't tell who the "we" in the preamble of the GPL means. When I read it, it sounds like the "we" refers to the Free Software Foundation. If just a portion of the GPL were defeated, would the FSF own the copyright to all the software ever GPL'd, but not have to play by it's viral rules anymore?
OK, so MS can go home feeling pretty good about having gotten the judgement they wanted, and that (from what I've seen here in the US) mainstream media is focusing on how the judgement might bouy the US stock market rather than on the issues of the case or how it will affect the industry. MS will probably view this as a huge win. So huge, in fact, that it's likely that Microsoft (which has never publicly acknowledged any wrongdoing, or expressed any hint of contrition) will regard the ruling as a validation of their aggressive business tactics. The fact remains, however, that the Microsoft monopoly is a Bad Thing(c) in and of itself, and that the unabated weight of it will continue to have a widespread negative impact on the industry, consumers, the economy, security, innovation and progress. Right now, we could impose remedies against MS (revealing source, breaking up the company) that would help mitigate these damages. But since the USDOJ and the justice system have failed to enact meaningful remedies, and given that MS is unlikely to back off their anti-competitive (and often illegal) behavior, is it not more likely now that we're headed into territory where politicians will start thinking about (God help us) regulation to "fix" the problem?
What do you think would have to happen (as if it's not bad enough already) for regulation to rear it's ugly head, and what ramifications do you think regulation would have for OSS?
---
...or we could all just start using Linux.
Does the wording on non-discriminatory licensing to OEMS mean that I will finally be able to purchase most laptops without having to pay a microsoft tax for software I delete as soon as I get it?
(Unix on the desktop is here, for those of us that want it. I've been running entirely in linux and BSD on the desktop for years now).
---
the pen is mightier than the sword, the sword is mightier than the court, the court is mightier than the pen.
--I have a few questions....
Mr. Rosen--
Are you aware of why a RICO suit wasn't pushed against microsoft execs given the scuttlebutt of the strongarm tactics they used against various hardware manufacturers as regards bundling and pre-loading alternative OS's? Last I knew, extortion was a criminal and not a civil crime. To me that was a more proper venue and focus for this case, with wider ranging ramifications. Comment?
This ruling boils down to a repeat of "bad microsoft, go ahead and keep doing what you were doing more or less". so--what's next? How can the average person who's had his security threatened by their exclusionary polices leading to insecure systems in not only the private market but in the public sector react to this and in what manner? What practical recourse is left? Say you have already stopped using microsoft products. Well, big deal, I want to know when they will be removed from my tax supported government, as they are A untrustworthy and a national security risk, and B, products produced by known felons who have been allowed to skate after using illegal activities to promote and profit from flawed products, a double crime in essence. What's a next step to take, for an individual? Is there ANY sort of practical recourse to take with such a vague but clear threat from mass continual useage and deployment of their products?
thanks in advance
I remember this issue coming up back when Phoenix cloned the IBM BIOS. But it has been so long that things have almost certainly changed due to the DMCA, etc. And in light of this anti-anti-trust ruling, I would love to hear from an authoritative source the answers to these questions.
What methods exist to create a program which is interchangeable with another, copyrighted program? Are there different rules that apply to file formats? What about network protocols, can I simply sniff my ethernet card and whatever I can deduce from the output is fair game?
What is the current legal status of 'reverse engineering' and 'disassembly' of a copyrighted program in order to create an interchangeable replacement program or alternately a program which interoperates compatibly with the original copyrighted program?
How many parties must be involved and what steps are required to reverse engineer a program? Must the party who writes the specifications be outside the U.S.? What ramifications are there for that party, i.e. can they ever write new software that competes with the program they reverse engineered without tainting the ownership of the new software?