[Samba] Microsoft - The settlement that isn't

David Rankin drankin at cox-internet.com
Tue Apr 16 10:21:02 GMT 2002

Antitrust Division, U.S. D.O.J.

    We the people, in order to promote fair opportunity for competition
in the computer software and operating system markets, want to know why
Microsoft is allowed to continue is predatory practices within the
software market.

    Of greatest concern is Microsoft's continued ability to eliminate
competition and harm consumers who choose Linux as a competitior to
Microsoft. The following article by Bruce Perens exemplifies our
complaint that Microsoft is still able to harm competition and consumers
with its practices.

    The issues contained within the article deserve your departments
consideration and special attention. Mr. Perens article follow below the

David C. Rankin, J.D., P.E.
1329 N. University, Suite D4
Nacogdoches, Texas 75961
(936) 715-9333
(936) 715-9339 fax


The Microsoft penalty that isn't
By Bruce Perens
April 15, 2002, 12:00 PM PT

In its antitrust settlement with the Justice Department and nine states,
Microsoft promised to publish technology that would allow competing
products to interoperate with Windows. But Microsoft has sidestepped the
penalty by crafting a technology license that excludes the company's
only viable competitor.

Linux, which was described by Windows Division Vice President Brian
Valentine as the long-term threat against Microsoft's core business, is
banned from interoperating with its common Internet file system,
otherwise known as Windows File and Printer Sharing.

The Microsoft license specifically excludes software under the General
Public License, commonly known as the GPL. The GPL is the software
license used by Linux and by SAMBA, a popular open-source program that
allows non-Microsoft systems to share files and printers with Windows.
Microsoft has also banned software under the Lesser General Public
License, or LGPL. That license is used by the Mozilla Web browser, the
GNOME graphical desktop, and many of the software libraries shipped with
Linux. The GPL and LGPL are the most popular licenses used for
open-source software, and cover tens of thousands of free programs.

A second Microsoft license on extensions used in Windows 2000 and
Windows XP will require royalty payments, excluding all software
produced by the open-source developer community. Because Microsoft has
patented features of the file-sharing protocol, open-source developers
who implement the protocol could be sued for infringement.

Microsoft is likely to use this same license on future "standards,"
embedding patented features in the standards and excluding free software
like Linux from use of the patents. While patented features in file
sharing would handicap Linux from being able to exchange files over an
office LAN (local area network), similar future efforts could ban
open-source tools like OpenOffice and AbiWord from operating with
documents created using Microsoft Office, and Web browsers like Mozilla
from viewing Web sites produced with Microsoft software.

It's the share-and-share-alike provision of the GPL that Microsoft can't
accept--the requirement that modified versions of software under the
license be available for anyone to further distribute and modify. But
this is the aspect of the license that made Linux a threat to Microsoft
while even the mighty IBM could not dent Microsoft's monopoly with its
OS/2 operating system.

The GPL, brainchild of MacArthur "genius" grant recipient Richard
Stallman and his GNU Project, creates a fair partnership among many
thousands of independent software developers that is difficult for
Microsoft to swallow. Microsoft previously responded by influencing
government and universities to choose weaker OS licenses that lack the
share-and-share-alike provision.

Because Microsoft can make proprietary and patented enhancements to
software under the weaker licenses, it can apply its embrace-and-enhance
strategy: Microsoft introduces incompatibility into the Microsoft
version of the software, and forces the public version of the software
out of the market because it won't interoperate with the Windows
version. Only a vendor that dominates the market could use such a
strategy to maintain its monopoly. The GPL-licensed Linux system is the
only one that has been able to make a dent in that monopoly.

Microsoft executives justify their position with the mantra, "We are for
strong intellectual-property protection." But only when it's to
Microsoft's advantage; otherwise, Microsoft wouldn't be pressuring
others to weaken their open-source licensing. Even during the penalty
phase of their antitrust prosecution, the company still can't settle for
a piece of the software industry pie. Although Microsoft's compromise
with the U.S. Department of Justice is crafted to make it seem that a
competitor could enter, it still leaves Microsoft owning the whole pie.

This situation also illustrates the dichotomy of software patents versus
copyright. Copyright laws protect your rights to the software that
you've created. Even the OS advocates use copyright law to enforce their
share-and-share-alike provisions.

In contrast, software patents create a legal monopoly that allows the
holder to prevent someone else from creating and distributing their own
software. If software patents were awarded justly, they might not be
quite so bad. But according to patent expert Greg Aharonian, 95 percent
of software patent claims are not inventions at all, and should never
have been awarded. Blame the U.S. patent office, which rewards its
examiners for awarding patents, not denying them, and gives them only a
few hours to examine each application.

When an open-source developer is prosecuted under an invalid patent
claim, can he prove that the patent is invalid or does not apply? The
legal fees for a patent defense often exceed a million dollars. The
little open-source developer will be forced to settle with the big
corporation, regardless of the merits of the case. To foster open-source
development, we need to provide developers with a safe harbor from
software patent prosecution.

What should you do if you aren't happy about Microsoft escaping an
antitrust penalty? Don't be passive about it. Since Microsoft hates the
GPL so much, give them more of it to contend with: Deploy systems like
GNU/Linux as Web servers and other infrastructure, and consider Mozilla,
OpenOffice and Evolution for the desktop. Look around fors oftware
projects that you can place under the GPL: internal tools, research
work, products that you built and then didn't sell--and get your
employer to release them.

But most importantly, let the U.S. Department of Justice and the nine
U.S. states that want to settle with Microsoft know that you won't
tolerate a sham. The remedies in the antitrust case must not exclude
Microsoft's only real competitor.

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