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Ask a Legal Expert How MS Ruling Affects Open Source 254

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.)
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Ask a Legal Expert How MS Ruling Affects Open Source

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  • Finally! (Score:5, Funny)

    by 13Echo ( 209846 ) on Monday November 04, 2002 @01:13PM (#4594334) Homepage Journal
    Finally, tech-based legal advice that doesn't begin with "IANAL".
  • Has she recently acquired a new beach house?
    • by Anonymous Coward on Monday November 04, 2002 @01:37PM (#4594407)
      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.
      • by Anonymous Coward
        Hey numbnutts - The possesive of Bush is Bush's not Bushes. I also would point out that this cases was going downhill long before Bush became President.
  • by Enry ( 630 ) <> on Monday November 04, 2002 @01:17PM (#4594343) Journal
    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?
  • Did Microsoft Win ? (Score:5, Interesting)

    by frankie_guasch ( 164676 ) on Monday November 04, 2002 @01:22PM (#4594356)
    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 ?
    • by Alsee ( 515537 ) on Monday November 04, 2002 @02:09PM (#4594496) Homepage
      Who won?

      Microsoft lost the case ages ago, so it became a question of what the penalty would be. Microsoft and the DOJ worked together and came up with a settlement proposal. Microsoft has been working hard to get this settlement approved. The settlement has penalties against Microsoft, but it is pretty much what they want it to be considering they lost.

      When someone loses in court and they are happy with the penalty it is a relative "win" for them.

      The big issue is that many people feel that the DOJ went too easy on Microsoft in the settlement. It only remedies a few of their abuses, and it has loopholes in it making major portions worthless.

      For example the loopholes on releasing information - They are permitted to release it in an extremely limited, closed, and often useless manner. If there is any information they do not wish to release, all they have to do is link it in some way to security, DRM, or some other company's information and that exempts it from disclosure.

  • by iamwoodyjones ( 562550 ) on Monday November 04, 2002 @01:23PM (#4594358) Journal
    From an analysis from the register I'd like your opinion on the committe being appointed.

    Here's a snip from

    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."

    • by Audacious ( 611811 ) on Monday November 04, 2002 @06:50PM (#4595855) Homepage
      This is a really easy one to answer. If you look to history you can find many instances where this same problem has come up before. The short and sweet answer is: It never works.

      The slightly longer answer is: Even monkeys avoid pain. Thus, as will be shown, the longer the committee is around, the less they will do to monitor Microsoft and the more they will adamantly state that they are complying with the court order. In this way they can misdirect any and all probes to find out exactly what they are doing.

      Basically, the judge is incorrect. You cannot have someone monitor themselves because they will be saying they are doing what you've asked them to do when really they never do.

      Ask yourself this: We recently had a string of murders committed by two people. Should we give them back their guns and set them free? We should. Let's just tell them not to shoot anyone else - ok? I'm sure they will do as we ask. After all - they've promised not to do it again and are willing to report in anytime we ask them to do so. You believe them? Don't you?

      I didn't think so. So now, change the word "gun" to "unlimited funds" and "shoot anyone else" to "harm any other business [like make them go out of business or do anymore FUDs and such]" and you basically have what's going on with this case. Oh yes, I almost forgot, change "murders" to "business fallouts/forced foreclosures/buyouts/takeovers/whatever" and "two people" to "Microsoft". Why! It reads the same. Bless me!
  • On Palladium (Score:5, Interesting)

    by forged ( 206127 ) on Monday November 04, 2002 @01:26PM (#4594366) Homepage Journal
    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 ?
  • by HaeMaker ( 221642 ) on Monday November 04, 2002 @01:26PM (#4594368) Homepage
    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)
  • by steveadept ( 545416 ) on Monday November 04, 2002 @01:26PM (#4594369)
    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?

    • by MrEd ( 60684 ) <> on Monday November 04, 2002 @02:06PM (#4594484)
      The decree permits Microsoft to avoid publishing APIs for security reasons

      And another question (brought up by a member of my LUG): Doesn't anyone think this is a bit of a two-edged sword? Anytime MSFT hides behind the 'security' clause they are basically admitting that they are depending on security though obscurity!

      While I agree that this is more of a tool for MSFT to block interoperability I think it leaves a lot of room for Sun, Linux pushers, etc. to point and say, "Here, look, we can show you how the security works on our product yet it's still solid".

      Will this matter, do you think?

      • "Here, look, we can show you how the security works on our product yet it's still solid".

        This is a really important point.

        As needs for security, authentication and privacy grow in the future, there will be different means of accomplishing that goal.

        If the cornerstone of MS technology is to require centralized authentication with them, or to make it practically-speaking difficult for anyone to offer competing Certifying Authorities in the .NET world, then many Enterprises are going to ask tough questions of it, like:

        "Why should
        you be involved in my security?"
        "Remind me again, exactly what value added am I getting for my money?"

        A genuinely distributed security model that does not gratuitously tie any commercial entitity into a position of indispensibility is what's needed. If MS doesn't provide that, then someone else will.

        This is an extra feature of secure computing that is not obvious.

        I think Microsoft has come to recoginize that the crypto experts are right: code review of algorithms is essential for gaining the greatest credence that your system is secure, despite the risk that you might temporarily look bad.

        But even more is required than a secure system.

        A system is need where anyone who so desires can freely build their own web of trust independent of all other authorities.

  • by Anonymous Coward
    The decision by the Justice Department to stop pursuing the antitrust case against Microsoft is a direct result of the outcome of the 2000 election.

    If you don't like it, remember: tomorrow is Election Day.

  • by Bistronaut ( 267467 ) on Monday November 04, 2002 @01:31PM (#4594384) Homepage Journal
    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"?
  • Valid Business Model (Score:5, Interesting)

    by Mr. Smoove ( 160347 ) on Monday November 04, 2002 @01:31PM (#4594386)
    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?)
    • 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?

      Ah, yes. The infamous section III.J.2. Well, in the past, Microsoft has made its opinion of Open Source quite clear [].
  • by BlameFate ( 564908 ) on Monday November 04, 2002 @01:34PM (#4594396)
    They say no publicity is bad publicity, but in this case could the amount of times that "Linux" has been mentioned in articles where this case is discussed be actually doing significant damage to Microsoft's mindshare?

    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?

    • Or the contrary question. Is the mention of Linux actually helping Microsoft?

      I mean, why exactly do you consider it damage? Isn't the supposed goal of this anti-trust lawsuit to bring about competition? If that competition does exist, then has not the goal been met?

      If the goal has been met, then is there any further reason to proceed against Microsoft in a court of law? This is not damaging to Microsoft, it's actually beneficial. At least in terms of lawsuits, even if they may be losing potential marketshare/revenue.

      Personally I'm of the belief that the computer world is so large that even a niche player has a substantial revenue potential. This idea that any one company needs to own it all is outdated, just like the auto industry and others. (Although you still see Honda versus Chevy arguments on the internet)
  • by viperjsw ( 304123 ) on Monday November 04, 2002 @01:35PM (#4594398)
    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.
    • 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.

      Please clarify the difference between real code and bugged code. :-)

      And don't whine about MS-bashing - try and tell me they don't deserve it.

    • What is being put into place to insure that Microsoft actually hands over real code?

      Sheesh, I'm sorry, but this is really a lame question. Have you ever heard of "contempt of court"? People can go to jail for that. Do you really think that people (yes, they are people like you and me, not satanic demons) are going to risk going to jail just so they can have some undocumented APIs?

      A lot of people really, really, really need to get a grip when it comes to Microsoft.

  • Ok a question... (Score:5, Interesting)

    by jd ( 1658 ) <imipak AT yahoo DOT com> on Monday November 04, 2002 @01:37PM (#4594409) Homepage Journal
    The biggest question I have, with regards Open Source, is how will this affect the ability to emulate Windows services and APIs?

    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.)

  • Question: (Score:4, Funny)

    by cybercuzco ( 100904 ) on Monday November 04, 2002 @01:38PM (#4594413) Homepage Journal
    Have you ever posted on slashdot, and if so, have you ever used the acronym IAAL instead of IANAL?
  • by Spruce Moose ( 1857 ) on Monday November 04, 2002 @01:39PM (#4594415)
    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.
    • 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.

      No, this makes open source projects harder to kill off, not easier. If there is no associated company or owner, who do you take legal action against? And there will always be people willing to continue the project if the main developers are "disuaded" from working on it.
  • APIs (Score:5, Interesting)

    by mrkurt ( 613936 ) on Monday November 04, 2002 @01:42PM (#4594422) Journal
    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?
  • by Anonymous Coward on Monday November 04, 2002 @01:43PM (#4594427)
    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?
  • by haplo21112 ( 184264 ) <> on Monday November 04, 2002 @01:46PM (#4594433) Homepage
    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?
  • Sua Sponte? (Score:5, Interesting)

    by fava ( 513118 ) on Monday November 04, 2002 @01:54PM (#4594457)
    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.
  • Glaring Loophole? (Score:4, Interesting)

    by Anonymous Coward on Monday November 04, 2002 @01:56PM (#4594460)
    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 (Score:5, Interesting)

    by bhsx ( 458600 ) on Monday November 04, 2002 @02:00PM (#4594468)
    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?
    • Re:Section J (Score:4, Interesting)

      by Qrlx ( 258924 ) on Monday November 04, 2002 @02:27PM (#4594589) Homepage Journal
      Everyone seems to be focusing on that "viable business model" thing but I don't think that's what it really means. It means that Microsoft doesn't have to release their API stuff to whoever comes asking. In other words, if your company is named 31117, Inc., your two employees are both under 18, and your Mission Statement is "Information Wants To Be Free!," then Microsoft isn't going to let you see their panties.

      On the other hand, if you are an esablished business (let's say RedHat,) with like an accountant and maybe some stock options, and you have a Duns and Bradstreet number, then you are probably good to go. Microsoft would have a hard time arguing that RedHat isn't an "authentic and viable" business in any "reasonable and objective" sense of the words. They can't just say "well, all OS except for Windows are not viable, so take a hike."

      I think the bigger issues are:

      1. What remedies, if any, address non-compliance?

      2. How big is the security carve-out? Is it so big that we'll never know anything about Longhorn/Palladium since they'll implement interprocess crypto (think x-box)? Or is it so small as to basically mean that MS doesn't have to provide info like "The SMB backdoor password is xyzzy?" In one case it covers anything dealing with crypto, in another case only a huge flaw that MS would rather not have public.
      • by bhsx ( 458600 )
        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.
        • Well I'm sure some permutation of that question will make it into the list, seeing as everyone's panties are riding so high because of it.

          I hereby decree that panties is the appropriate metaphor to understand this whole Section J issue.
      • On the other hand, if you are an esablished business (let's say RedHat,)

        But then Red Hat will have to sign an NDA and will not be allowed to release any source code. So how does this help us?

  • by wowbagger ( 69688 ) on Monday November 04, 2002 @02:00PM (#4594469) Homepage Journal
    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?
  • by Anonymous Coward on Monday November 04, 2002 @02:05PM (#4594479)
    Suppose that MS violates the agreement/ruling. How likely is it that there would be some sort enforcement, and what would that enforcement look like?
  • by Lost Engineer ( 459920 ) on Monday November 04, 2002 @02:09PM (#4594494)
    Reading the judgement, it appears that Microsoft is prohitbited from punishing OEMs who include alternative operating systems on their machines. So it appears that OEMs need no longer be afraid of Microsoft. The question is, are they still too afraid of Linux to make it a viable desktop computing alternative?
  • Slashdot-speak (Score:3, Flamebait)

    by squarooticus ( 5092 ) on Monday November 04, 2002 @02:18PM (#4594522) Homepage
    "one of the best-qualified people in the world to answer questions on this topic" = "someone who agrees with the majority of Slashdot readers"

    I'm not saying this because I disagree with Larry's conclusions (although I do, to some extent); I'm just trying to point out the bias that permeates this site. The word "news" has been redefined over the past 35 years to mean "commentary," and that's too bad.
  • Judge's Reasoning (Score:5, Interesting)

    by BrianWCarver ( 569070 ) on Monday November 04, 2002 @02:26PM (#4594587) Homepage

    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?

  • Discriminatory (Score:5, Interesting)

    by Chris Johnson ( 580 ) on Monday November 04, 2002 @02:37PM (#4594630) Homepage Journal
    To what extent will Microsoft now be forced to change their current, ongoing strategies of releasing information in discriminatory fashion?

    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.

  • Okay, I'll bite... (Score:3, Interesting)

    by Mr. Sketch ( 111112 ) <> on Monday November 04, 2002 @02:40PM (#4594636)
    So, How Does The MS Ruling Affect Open Source?
    • So, How Does The MS Ruling Affect Open Source?
      Moderate this one up, please. It is, after all, the ostensible question.

      I'd only ask, for clarification: does this ruling erect any additional legal barriers that were not already there before?

      No, this post isn't a troll.

  • by Bilbo ( 7015 ) on Monday November 04, 2002 @02:50PM (#4594675) Homepage
    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?

  • by sabinm ( 447146 ) on Monday November 04, 2002 @02:52PM (#4594688) Homepage Journal
    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?
  • Price schedule (Score:3, Interesting)

    by kbielefe ( 606566 ) <> on Monday November 04, 2002 @02:56PM (#4594711)
    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?
  • Simply put, the Microsoft machine is in high gear, and they know the government wont stop them, no matter what they do.

    They now have pretty much free reign to attack all competitors how ever the see fit, including OpenSource stuff.

    Lesson learned: if you get big enough you are exempt from business laws. Only trick is getting there before you get caught.
  • Does the settlement seem like a hastily created balancing act? By that, I mean keeping the creeping hand of government intrusion into business out, yet at the same time punishing a company which used questionable practices.

    Note that I have no love for Microsoft, yet I do wish to keep the government out of business and more into the practice of governing.

    As the settlement stands, it seems like an intrusion(even if quite useless) into Microsoft's business. Perhaps even with this settlement, the invisible hand will deal with them in time.

  • by fmjrey ( 618827 ) on Monday November 04, 2002 @03:10PM (#4594769)
    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?
  • Fair decision? (Score:4, Interesting)

    by AntiNorm ( 155641 ) on Monday November 04, 2002 @03:14PM (#4594783)
    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?
  • Palladium and LeGrande will probably be embraced by businesses -- media, healthcare, banking -- anywhere that businesses need to ensure that media or data needs to be vaulted. Cisco is pushing it too -- they want to sell the equipment to stream video on demand. In effect, all three are seeking to building a data citadel within the Internet.

    As no one else that I'm aware of is doing this in an open source fashion, they'll end up with a defacto monopoly in a protection racket. At that time, the argument could be made that Microsoft used its monopoly power to create another monopoly.

    Any chance of using that against them to open up Palladium?
  • by sterno ( 16320 ) on Monday November 04, 2002 @03:23PM (#4594839) Homepage
    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.
  • by jackb_guppy ( 204733 ) on Monday November 04, 2002 @03:23PM (#4594847)
    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.
  • by hsmyers ( 142611 ) on Monday November 04, 2002 @03:24PM (#4594850) Homepage
    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?
  • by HighTeckRedNeck ( 538597 ) on Monday November 04, 2002 @03:49PM (#4595023)
    This is probably the best outcome the OSS movement could have gotten. When all a tyrant gets is a slap on the wrist you can be sure it will be business as usual, only more so. So M$ will practice even more predatory practices and try to get even more restrictive with its EULA's. Why is this to the OSS movements benefit? Because it cuts off other (reasonable) competition while simultaneously causing more people to want to switch to OSS software.

    Nothing takes the fight out of a revolution like the tyrant becoming reasonable. IBM super computers, HP, SGI, Sun; as the big boys switch to Linux and cell phones, pda's and other things move to J2ME on a Linux kernel for all the right reasons the governments and other big users will have even more reason to switch away from the MS bullying.

    Of course, bully's become spiteful in the end and drive the nails into their own coffins. My question is "can we sue the DOD to switch to OSS and Linux since it would seem necessary for both security and R&D and the MS EULA's don't allow their products to be loaded onto systems alongside OSS software". Seems to me it would save lots of money as well as making the DOD legal, secure and smarter. Given MS's either-or ELUA's they seem like the ones to be canned.

  • by rstewart ( 31100 ) on Monday November 04, 2002 @03:52PM (#4595041)
    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?
    • RE: parent, nodiscriminatory terms could mean they charge everyone $5000 for a license, it doesn't matter if you are IBM, Dell, Corel, Adobe, (big companies) ISVs or small companies, or any of the hobbiests, shareware, Free and Open Source software makers, and so on. As long as its the same for everyone, it isn't discriminatory as long as it is 'reasonable' for corporations. (A company that can afford a few programmers can reasonably afford a few grand for something close to their core business.)

      What I'm concerned about is how the Judge made the distinction in what to include as technologies that must be considered separate, and how she stated that OS components, Middleware, and other products were not neccessarily mutually exclusive. There was in her description information that the inclusion of products and technologies that can be distributed separately from the OS, or are trademarked, or (a few other things) would be considered in the middleware category. Would that mean that a certain functionality in another OS that can be separated on OTHER OS's, such as the PCMCIA code in Linux, would mean that code controlling PCMCIA cards in Windows would need to be considered as separate from the OS? Other examples would be window managers vs. the same functionality, and shells?

      Continuing with her definition of Middleware, stating Internet Explorer is in the class of middleware -- when programming within the windows shell, much of the stuff actually thought of as 'windows' is actually interpreted inside of Internet Exploder; will the interoperablity clauses affect those as well? Specifically will MS have to provide methods to replace/swap the shell as though it were Middleware?

      (It's time to go home for the night, and this isn't coming across clarly. Can someone translate this more into readable text if they think they understand? Thanks. frob)

  • by Anonymous Coward
    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?
    • The original author owns the copyright to the software, not the FSF (you can sign it over but I think most don't).

      If the GPL is illegal then your rights to the software revert to those covered by copyright law. This lets you do far less with the software. It seems unlikely that it can be illegal in any way however, because it grants rights. It says "Normally it is against the law to do A to me, but I will allow you to do so. It is also against the law to do B to me but I don't grant you permission to do that". This is really what the GPL says, but a lot of people seem to have A and B confused and see it as some sort of taking of rights, they think it's more like "I'll let you do B. Wait I take some of B back and only leave you A".

  • by blinkylights ( 589120 ) on Monday November 04, 2002 @04:29PM (#4595199)

    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.

  • by sanermind ( 512885 ) on Monday November 04, 2002 @05:20PM (#4595411)
    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).
  • questions (Score:5, Interesting)

    by zogger ( 617870 ) on Monday November 04, 2002 @06:27PM (#4595690) Homepage Journal
    --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
  • by BoBG ( 9969 ) on Monday November 04, 2002 @07:10PM (#4596015) Homepage
    So we know that MS does have a monopoly, and they did unlawfully act to preserve that monopoly, and based on those protective actions did reap a profit at the expense of their would be competitors. (These things are not up for debate they are 'Findings of Fact'.)

    My question is, do they get to keep their unlawfully obtained profits? If yes, is it because they settled and did not have a judgement imposed upon them? If no, what penalties in the judgement serve to revoke valuable assets/profits from MS? (I must have missed that part.)

  • by Radical Rad ( 138892 ) on Monday November 04, 2002 @09:41PM (#4596835) Homepage
    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?

God help those who do not help themselves. -- Wilson Mizner