Larry Rosen on the Microsoft Penalty Ruling

Larry Rosen on the Microsoft Penalty Ruling 289

Posted by Roblimo on Monday November 11, 2002 @01:25PM from the I-am-a-lawyer-and-I'm-not-ashamed-to-admit-it dept.

Some excellent questions got asked. And these answers, from Larry Rosen, an attorney who works heavily on open source licensing matters, ought to give you a bit of insight into what the Microsoft "final judgement" means in the context of open source development and the software marketplace in general.

How do consumers benefit?
No, really! by Enry

Both Bill Gates and John Ashcroft talked about how the decision benefits consumers. But there's nothing really in the decision that changes the way MSFT does business. I can't call IBM and get a discount on a system without Windows installed, if I load XP onto a machine, MSFT can take it over and install software without my permission, and the APIs can be buried in MSDN, forcing OSS software developers to not only subscribe to MSDN, but also follow whatever licensing MSDN forces on users.

For the most part, this is MSFT business as usual.

Where, in this decision, do the consumers benefit? If you could put yourself in CKK's shoes, what would you say?

Larry:

I would have expected Bill Gates and John Ashcroft to say how happy they are with the decision. That fact alone doesn't help me interpret its effects.

I'm also pretty confident that there will soon be important Microsoft business practice changes to solve the problems you suggested, at least partly as a result of this decision but more importantly as a result of inevitable market forces.

The court decision discourages Microsoft from using its market power to coerce OEMs and distributors into exclusive marketing arrangements. That may encourage companies to offer computers without an operating system installed, or with Linux installed. Let's make sure that distributors friendly to open source offer these options, and let's help prove, by offering competitive open source software solutions to customers, that there's a healthy market for such systems. We know from this court decision that distributors need no longer fear retaliatory licensing practices from Microsoft. Now all we need to do is compete on quality and value.

Microsoft's XP software installation and upgrade model seems to be a dud in the marketplace too. The more Microsoft does nasty things like that to its customers, the more those customers turn to Linux and open source. So I don't see that as being a problem that the antitrust judge had to deal with.

As for your point about APIs, that to me is the most interesting part of the court's decision. The judge found it necessary to define an area in which Microsoft must disclose its APIs. While not as broad a definition as most of us would have liked, it does require Microsoft to disclose a lot more than it ever has before. We must be vigilant to prevent Microsoft's movement of APIs from one operating system level to another simply to hide them from us.

You ask, "Where, in this decision, do consumers benefit?" That's hard to see at the moment. Antitrust law does not deal with a static game in which one party says "check mate" at the last move. It merely attempts to prevent certain behaviors that distort the game as it is played. In answering this and other Slashdot questions, I want to look for ways that the court helped to prevent game distortions. I don't want to grouse about the fact that we didn't get everything we wanted, but instead to identify new opportunities in this court decision for the open source community to play this game against Microsoft successfully as an equal.

On Palladium
by forged

With Microsoft pretty much doing what they want [bbc.co.uk] 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?

Larry:

Great question, but fortunately it wasn't in my charter to answer it.

I can tell you that the court's decision in the remedy phase of the Microsoft antitrust trial said absolutely nothing about Palladium. I doubt it was anywhere in the judge's mind at the time. And I don't see a clear connection between the two issues.

Your real question, I guess, is hidden in your leading comment, that Microsoft is "pretty much doing what they want these days." After this antitrust decision, they're going to be watched intensely for evidence of anticompetitive behavior. I don't think they're going to be doing only what they want, at least for a few years.

There are plenty of interesting comments on Palladium. I just did a quick Google search and found this page at EPIC. Why don't you ask one of the people at EPIC whether they see the antitrust decision as making a difference to the "trusted computing" technology?

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)

Larry:

Copyright law and antitrust law both deal with monopolies. In copyright law, the monopoly is sanctioned -- encouraged -- as a reward for creativity. In antitrust law, the monopoly is restrained to prevent unfair advantage in anticompetitive ways. So as the questioner rightly points out, there may be ways in which these two laws will have contradictory effect.

It is important to remember that the antitrust law doesn't directly prevent a company from gaining a monopoly by legal means. It is the *use* of that monopoly power to gain unfair advantage over competitors that is prevented. A company can't, for example, use its monopoly in one business area to gain a monopoly in another business area. It can't use a monopoly in water softening systems to force its customers to buy the company's own salt. It can't use its monopoly to prevent competitors from selling their products through independent distributors. It can't sell products at a loss to force competitors out of business.

A copyright owner has a legal monopoly. Antitrust law doesn't trump it. The only thing the antitrust law can do is address a situation in which that legal monopoly is used in an anticompetitive manner by a monopolist.

Ordinarily a company would have the right to publish, or not to publish, its copyrightable subject matter, or to license it under any terms it wanted including confidentiality provisions or withholding the right to create derivative works. Almost every proprietary software vendor uses licenses with such provisions. But Microsoft used that power to lock competitors out from the lucrative "middleware" business. (What the court meant by "middleware" is a potential later topic.) Other companies could not create certain types of applications because Microsoft kept secret some of its copyrightable code in Windows. Even though Windows and those other applications were potentially different business areas, Microsoft tied them together (e.g., used its copyrightable and trade secret materials) in ways that enhanced its monopoly. That was a violation of the antitrust law.

So the court fashioned several remedies to prevent that unfair business tactic by Microsoft.

The court requires Microsoft "to disclose certain APIs, along with related technical information, which 'Microsoft Middleware' utilizes to interoperate with the Windows platform." It also mandates the "disclosure and licensing of protocols used by clients running on Microsoft's Windows operating system to interoperate with Microsoft servers." Executive Summary, pp. 14-15.

At the same time, the court refused to require the disclosures of Microsoft's intellectual property that describes Windows' internal interfaces:

"Over-broad disclosure, such as that proposed by Plaintiffs, must also be avoided because it will likely enable wholesale copying or cloning of Windows without violating Microsoft's intellectual property rights. The cloning of Microsoft's technology carries the potential to hinder some aspects of competition and discourage innovation. As antitrust law does not exist for the protection of competitors, but for the protection of competition, the Court does not regard this end as a legitimate one."

So that's why the court balanced copyright with antitrust.

The court also ordered Microsoft to license its intellectual property for APIs on "reasonable" and "non-discriminatory" terms. Having just lived through a W3C effort to define those words for patent licenses, I expect this part of the court's decree will provide full-time employment to more than a few lawyers. :-)

Valid Business Model
by Mr. Smoove

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?)

Larry:

My editor assured me that I would have to answer ten questions, and this one query alone includes five. I'm almost more than half-way done!

The court never once mentioned open source software in its decision. That is not remarkable because judges -- especially district court judges -- are always reluctant to make an issue broader than the case before it. The court was asked to determine a remedy for Microsoft's monopolistic practices. This decision, with all its flaws, does that in a comprehensive way. This means that the court's provisions regarding the disclosure of APIs, the availability of "reasonable and non-discriminatory" licenses from Microsoft, that company's licensing practices with OEMs, and so on, apply equally to competition from open source software as for proprietary software.

To be perfectly clear about this point: Open source software is the most effective competition to Microsoft and they know it. They will not be able to discriminate against our software in monopolistic ways. The court retains the right to step in for the next five (or up to seven!) years if Microsoft doesn't cooperate. We'll be watching.

No, Microsoft can't discriminate against us if they say we're "not up to their standards." That's hogwash any way you look at it! The court did, however, set a one-million-copy-per-year threshold for certain obligations, so that Microsoft isn't forced to "redesign its product to accommodate a particular piece of software with extremely limited use." I'm not sure how this will play out in practice, but I think it is likely to affect smaller proprietary vendors rather than us. After all, we can give away one million copies of open source software to willing customers much easier than a proprietary vendor can sell them.

As I said, Microsoft can charge "reasonable" and "non-discriminatory" royalties. In law school we always used to joke that the word "reasonable" in a statute was a full-employment opportunity for at least two lawyers. Judge Colleen Kollar-Kotelly will be keeping her eyes on that too for at least the next five years. Here's the vague words she used in her decree:

"The Court will prohibit Microsoft from imposing unreasonable or discriminatory license terms, but will permit Microsoft to require a reasonable royalty for the licenses necessary to exercise the rights guaranteed by the final judgment." (Executive Summary pp. 15-16.)

One representative from Microsoft personally reassured me several times over the past few year that her company does not intend to charge high royalties for licenses to patents. Perhaps that also means that her company won't attempt to stifle competition by charging higher royalties than the open source community can afford.

Finally, I'm confused by your question "Can you legally reverse engineer a software having seen the code?" If you've seen the code, why do you need to reverse engineer it? I'll assume you mean, having seen the API documentation, can you reverse engineer Microsoft's code to see how they implemented the API? No! Reverse engineering may be done only if Microsoft allows it in their licenses. Consult a lawyer before you reverse engineer something.

You may have meant one other thing: Under Microsoft's Shared Source licenses you may look at their code. But beware of the conditions under which they show it to you. That software can contaminate you and put your own open source software at risk if you -- even inadvertently -- copy their code. This has nothing to do with the antitrust topic so I'll say no more about that here.

Can Microsoft Pull a "Fast One"?
by viperjsw

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.

Larry:

I resent this. Most of the lawyers I meet in open source circles know a lot more than "jack" about code. Some of us even wrote lots of code in prior careers. We're just frustrated engineers who wanted to make our parents proud by going to law school.

We have to count on talented experts in the software field to be able to prove that Microsoft is doing any of the things you described. Keep your eyes open for any signs of cheating.

I've handled lots of civil litigation in which a defendant's misrepresentations come out, and then the defendant lost. The discovery rules give us lots of ways to prove bad faith.

The court appointed an "enforcement committee" to protect the plaintiffs' interests. Here's what that committee has the power to do:

"The remedy adopted by the Court will provide Plaintiffs, acting only after consultation with their enforcement committee, reasonable access to Microsoft's source code, books, ledgers, accounts, correspondence, memoranda, and other correspondence, access to Microsoft employees for interview, and the right to request and receive written reports from Microsoft on any matter contained in the Court's remedial decree. Plaintiffs will, of course, be bound to limit any use of information obtained through these means for the purpose of ensuring Microsoft's compliance with the remedial decree, or as otherwise required by law. Similarly, should information and documents provided to Plaintiffs be subject to disclosure to a third party, Microsoft will not be deprived of the opportunity to claim protection pursuant to Federal Rule of Civil Procedure 26(c)(7)." (Executive Summary, p. 17.)

That's pretty strong. Imagine what life would have been like if we'd had that power all along....

APIs
by mrkurt

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?

Larry:

Judge Kollar-Kotelly's ruling in the Microsoft antitrust trial was not good news but neither was it a doomsday ruling. Microsoft had already been found liable for monopolistic practices, and the court was just deciding the remedy phase for those plaintiffs who hadn't settled along with the Justice Department quite a while ago.

It is interesting to me to see how such cases are won and lost. Microsoft controlled the definitions that the court accepted and by doing so it won this battle over its future. The court said clearly that the definitions were of paramount importance:

"Integral to understanding the two remedies proposed in this case is a preliminary understanding of the manner in which the two remedies treat middleware." (Executive Summary, p. 5)

The court found that Microsoft's definition of middleware was more consonant with the treatment of the term during the liability phase of the trial.

Middleware is software that resides in the middle between the operating system and something else. "It relies on the interfaces provided by the underlying operating system while simultaneously exposing its own APIs to developers." If defined broadly, such middleware would include almost any software product. If defined narrowly, it would encompass software that provides the functionality of Internet browsers, email client software, networked audio/video client software, and instant messaging software.

The court decided to accept Microsoft's narrow definition of middleware.

Microsoft now has the obligation to expose operating system APIs that are necessary to implement middleware as that term is defined by the court. To avoid confusion, the court specifically required disclosure of APIs for network and server-based applications. The court specifically excluded from disclosure APIs for interactive television software, handheld devices, and Web services.

It seems that, if you can get a court to accept your definitions of terms, you can watch your opponent's proposed remedies disappear in the wind.

The open source community should make sure that Microsoft publishes all the APIs it is required to by this decision. We want to provide valuable open source software that can compete, on Microsoft's own platform and on Linux computers, against all of Microsoft's middleware products.

So experts in open source software should read the court's definitions of middleware carefully, and understand each of the exceptions to the disclosure requirements precisely. I could spend a lifetime analyzing hypotheticals about "communications" protocols, or about "encryption" or "digital rights management." Or I could wait until an important real issue arises. Guess which alternative Judge Kollar-Kotelly chose?

Microsoft is going to have to tread very carefully in this area. If they refuse to disclose certain APIs that their customers, distributors, OEMs and competitors want to have disclosed, they will have to have an intelligent reason. The judge will be listening, and so will we.

Sua Sponte?
by fava

What about the sua sponte provision.

"Jurisdiction is retained by this Court over this action such that the Court may act sua sponte to issue further orders or directions, including but not limited to orders or directions relating to the construction or carrying out of this Final Judgment, the enforcement of compliance therewith, the modification thereof, and the punishment of any violation thereof. Jurisdiction is retained by this Court over this action and the parties thereto for the purpose of enabling the parties to this action to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify or terminate any of its provisions, to enforce compliance, and to punish violations of its provisions."

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?

Larry:

What's wrong with being a geek grasping for straws?

That's exactly the straw this geek grasped at when I first read the court's decision.

Was the judge's ruling based on the case....
by wowbagger

Many folks are whipping themselves into a frenzy blaming the judge for this decision - but a judge can only (and SHOULD only) judge the case they're brought.

Do you feel the judge was judging within the context of the case she was brought (in other words, that the DOJ fell down on the job of bringing the appeal), or do you feel that the judge's decision was in error based on the case that was brought to her?

Larry:

I am sure that Judge Kollar-Kotelly did not ask for the privilege of handling this case. Yet her decision -- agree or disagree -- demonstrated careful reasoning, an appreciation of computer software beyond that of the typical lawyer or judge, and a good understanding of the limitations of her role.

Here's how she got the case:

"On appeal, the United States Court of Appeals for the District of Columbia Circuit deferred to Judge Jackson's factual findings, altered his findings of liability-affirming in part and reversing in part, and vacated the remedy decree. The appellate court affirmed only limited violations based on 2 of the Sherman Act for illegal monopoly maintenance; all other grounds were reversed. Soon thereafter, the case was randomly reassigned to this Court for the imposition of a remedy." (Executive Summary, p. 3.)

Here's how errors are corrected in such situations. The plaintiffs may appeal this decision. Assuming that the appeals court upholds the district court's decision, the plaintiffs can then appeal to the U.S. Supreme Court. That Court may elect not to hear the appeal. Or it can turn this into an important case to be argued by the best lawyers we can find.

At none of those appeals steps will any court care what Larry Rosen feels.

From a Different Point of View
by Bilbo

Most Slashdot readers are, of course, looking at this decision from a strong technical point of view. It is clear that this decision is going to hurt our favorite technology, and is a bad thing for the Technology sector. We tend to draw parallels from other technology cases, such as the breakup of AT&T, and the outcome of that case.

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?

Larry:

You're looking at this decision from the right perspective. Antitrust law deals with business practices, not technology. But this case was brought because of a technology monopoly, so the court fashioned a remedy that it felt addressed the business of technology in which Microsoft's monopolistic practices were most obvious.

The previous court found that Microsoft abused its monopoly power to gain new (related) monopolies and to strengthen its market dominance. When that happens, the court must fashion a remedy. Here's how Judge Kollar-Kotelly, at pages 3-4 of her Executive Summary, described the law of antitrust remedies:

1. Since the appeals court already reduced the scope of Microsoft's liability, that higher court ordered the district court to "determine the propriety of a specific remedy for the *limited* ground of liability we have upheld."

2. Microsoft had not been found to have acquired its monopoly unfairly, but merely to have maintained it by illegal means. Therefore, "rather than termination of the monopoly, the proper objective of the remedy in this case is termination of the exclusionary acts and practices related thereto which served to illegally maintain the monopoly."

3. The goal of antitrust remedies is not to punish a past transgression, nor merely to end specific illegal practices. A remedy should "effectively pry open to competition a market that has been closed by [a] defendant['s] illegal restraints." Equitable relief in an antitrust case, the court wrote,

"should not 'embody harsh measures when less severe ones will do,' nor should it adopt overly regulatory requirements which involve the judiciary in the intricacies of business management. In crafting a remedy specific to the violations, the Court 'is not limited to prohibition of the proven means by which the evil was accomplished, but may range broadly through practices connected with acts actually found to be illegal."

4. Finally, the plaintiffs did not request a structural remedy of dissolution ("a break-up of Microsoft") and instead proposed a remedy which focuses on regulating Microsoft's behavior.

Within those constraints, the district court could range rather widely in crafting specific remedies in this case. That remedy must be tailored to fit the situation before it.

The plaintiffs in this case obviously felt that the court did not go far enough in fashioning a remedy. They may appeal. But we've got a remedy that we're all -- including Microsoft -- going to have to live with at least for now.

You ask whether this decision was made "with the intent of strengthening the overall business climate of the US, especially given the current state of the world economy?" I gather from Judge Kollar-Kotelly's written decision that this wasn't one of the considerations for her. Will it accomplish that goal anyway? Perhaps it will be a modest step forward if we're diligent in our efforts to ensure compliance by Microsoft in every way that is important to us.

Finally, you ask whether the decision will "make perfect sense to the average CEO?" There are no average CEOs. Just like in Garson Keillor's hometown of Lake Wobegon, everyone in such positions is above average. But I can bet you that CEOs of software companies are reading this decision with great interest.

The real question for me: microsoft laptop tax
by sanermind

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?

Larry:

I sure hope so. The court's decision doesn't require distributors or OEMs to offer that option, but it does prevent Microsoft from entering into exclusive contracts that force distributors or OEM's to impose a "laptop tax."

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