Remember when I wrote about trying to find a GNU/Linux computer on the Dell website, and all I could find were ads for Microsoft XP Professional? Well, somebody else noticed the same issue. The latest Joint Status Report on Microsoft's Compliance with the Final Judgments in U.S. v. Microsoft is out, and Microsoft has agreed to quit forcing vendors to advertise only Microsoft products. If the vendor sells a dual boot computer, for example, it is allowed to recommend Red Hat or Novell or Mandrake, not just Microsoft products, without violating Microsoft's Market Development Agreement (MDA).
Can you believe it took a court to make this happen?
Here's a bit from that section:
"Pursuant to the MDA, Microsoft provides marketing funds — in the form of discounts on the price the OEM pays for each copy of Windows — to OEMs whose print advertisements and websites promote Microsoft's operating systems in a manner specified by Microsoft. One promotional requirement under the MDA is that OEMs place a Microsoft-determined "tagline" on print advertisements and company websites for those computers shipped by the OEM with a Windows operating system. An example of such a tagline is: '[OEM] recommends Windows XP Professional.' There are a number of variants on this tagline for different advertisements, but they all take the general form of '[OEM] recommends Windows XP. . . .' Plaintiffs requested that Microsoft issue a clarification addressing some OEM confusion about the application of this tagline requirement to print advertisements and websites for computers sold with non-Microsoft operating systems. Microsoft has agreed to issue such a clarification so as to eliminate any doubt as to the meaning of these requirements; this clarification will encompass two key points: (1) OEM print advertisements and websites for computers that are sold without any Windows operating system do not need to include the tagline for the OEM to comply fully with the tagline requirement; and (2) OEM advertisements for computers sold with a choice of Windows or a non-Microsoft operating system may include language recommending non-Microsoft operating systems in addition to the Windows XP tagline and still comply with the tagline requirement."
They say that they are monitoring Longhorn "to enable early detection and resolution of any potential areas of concern. Plaintiffs anticipate that these discussions will continue throughout the Longhorn development and testing cycle and will report to the Court on any resulting compliance issues as necessary."
Somebody noticed the little matter of .NET licenses including a prior consent requirement, before publishing any benchmarking comparisons:
"Plaintiffs have learned that Microsoft's contracts for the .NET Framework, a component of the Windows operating system used to build and run Windows-based applications, require prior consent from Microsoft before licensees may publish benchmark testing results for the .NET Framework. Benchmark tests can be used to compare the performance of the .NET Framework to the performance of competing products. A number of companies offer products based on Java technologies that compete against the .NET Framework. For software developers and distributors, the ability to use such metrics to promote competing non-Microsoft products would be quite useful in the marketplace. Plaintiffs informed Microsoft that they are concerned about this restriction on publication of benchmark test results without Microsoft's consent since Section III.F.2 of the Final Judgments prohibits Microsoft from conditioning the grant of 'Consideration' to any software company based on its agreement not to promote software that competes with Microsoft operating system software or Microsoft middleware. Earlier this week, Microsoft expressed a willingness to modify the provision so as to require prior notice to Microsoft of various details relating to the testing, but not Microsoft's prior consent before publishing benchmarking results. Plaintiffs are reviewing Microsoft's response and will make every effort to bring this matter to a conclusion prior to the October 19 status conference before the Court. . . .
"Microsoft is working with the Plaintiffs to address their stated concerns regarding the benchmarking provision in Microsoft's licenses for its .NET Framework software. Microsoft does not object to benchmarking of non-Microsoft software against the .NET Framework. Microsoft's objective in its discussions with Plaintiffs is to ensure that the developer community is provided with benchmarking results that are accurate. The company has proposed a revision to the benchmarking provision of the .NET Framework licensee that states explicitly that benchmarking is permitted, provided the licensee provides testing details to Microsoft so that it can attempt to replicate the results before they are published.
I just thought you cynics out there might like to know that the lawsuit wasn't absolutely for nothing. The Status Report also says that the Technical Committe "has assisted the United States and the New York Group in their review of complaints and continues to directly receive third-party complaints and resolve these complaints in accordance with the procedures set forth in the July 3, 2003 Joint Status Report". So complaints are still being accepted. Of course they need to be related to the Final Judgements, not new matters.
But on compliance with the release of software communications protocols to licensees, the report expresses concern about delay, as it did in the last Status Report, as well as about the technical completeness and accuracy of the documentation. Microsoft chose to offer the documentation, in the Microsoft Communications Protocol Program ('MCPP'), only in a digital rights file format called MHT, which can't be searched or annotated, and that you must have IE to read:
"Plaintiffs have described to Microsoft three general areas of concern surrounding the current state of the documentation. First, Microsoft proposes to offer the revised technical documentation to licensees in a file format that is a rights-protected derivative of HTML. Plaintiffs are concerned that this format significantly limits the practical usability of the documentation. For example, a licensee cannot annotate the documentation or use bookmarks to facilitate collaboration with other authorized users of the documentation and the licensee. This format also does not support sophisticated search techniques that would make the documentation easier to navigate and use. Finally, the documentation in its current form can only be used with Microsoft's own Internet Explorer browser. Microsoft has agreed to meet with the TC to discuss this matter and has promised to provide a report within 60 days on additional measures that it would be willing to take to improve the usability of the documentation."
Ah, Microsoft. Kicking and screaming their way into compliance of a sort. Their justification? It works for them, it's good for long files, and they've published the specs -- it's a proposed standard, heaven help us -- so if some free software-using person wants to write something to be able to read the documentation, they can knock themselves out:
"Microsoft has undertaken very substantial efforts to reformat all of its MCPP protocol documentation in a format known as 'MHT' with Microsoft digital rights management. Microsoft believes this format is a significant improvement over the current Microsoft eBook viewer, and offers the best available combination of navigational and usability features, familiar viewer interface, ability to handle very large document files, and security of the documentation. (MHT is a proposed public standard, and thus support for viewing content in the MHT format can be implemented in any Web browser or other software product. In addition, support for Microsoft digital rights management can be implemented using a free software development kit that Microsoft has made available for this purpose.) Although Microsoft believes MHT with digital rights management is a good choice for document format, the company will carefully assess licensee feedback from the beta testing process and work closely with the Technical Committee to explore possible ways to enable extra features within this format, or in alternative formats if such formats offer more features than .MHT with sufficient security. "
Now you know what the title means by Joint Status Report. Microsoft gets to write some of it, Section III. This last section is from Section III. What they write isn't necessarily accepted by the Plaintiffs, the Justice Department and the Plaintiff states, and vice versa.
What I don't see is any update on the Sun license. In July's Status Report, it said this:
"Since the previous Status Report, Microsoft has signed MCPP licenses with three additional companies listed in Section III below. In addition, in the previous Status Report, Plaintiffs reported on the MCPP Agreement between Sun Microsystems and Microsoft. At the time that agreement was entered into on April 1, 2004, Plaintiffs were informed that Sun's MCPP license would be completed in the near future. To date, the amendments necessary to finalize Sun's MCPP license have not been drafted and it is Plaintiffs' understanding that there has been little movement toward completing the license. Microsoft has reported to Plaintiffs that Sun has not yet paid the pre-paid royalties necessary to begin its participation in the program.
"Plaintiffs remain interested in the status of the Sun agreements for two primary reasons. First, as the Court noted, Sun is a 'major addition' to the group of licensees, particularly because it entered into a general server license, which only one other licensee, SCO Group, has signed. Second, Plaintiffs will review the Sun MCPP Agreement to ensure that the MCPP licenses are being offered on a non-discriminatory basis, as required by the Final Judgments. Plaintiffs will continue to monitor any developments with respect to Sun."
There is not a word in the latest Status Report on this matter, which may just mean that it is still be looked into. This is an interim report. The complete list on the Justice Department's US v. Microsoft page is here.
Did you know there was such a concept? Neither did I. But Lawrence Rosen sends me this letter [PDF] he sent to the Antitrust Modernization Commission, which is studying whether antitrust law needs to be tweaked and was asking for public input:
October 5, 2004
BY EMAIL (email@example.com)
Antitrust Modernization Commission
Attn: Public Comments
1001 Pennsylvania Avenue, NW
Washington, DC 20004-2503
RE: Comments regarding Commission issues for study
69 Fed. Reg. 43969
I am currently general counsel and secretary of Open Source Initiative,1 and have served as attorney for many software companies and open source software projects. I am the author of Open Source Licensing: Software Freedom and Intellectual Property Law published by Prentice Hall in 2004, and speak and write around the world on open source issues. For nearly three years I participated on the W3C Patent Policy Working Group and have direct experience with antitrust issues in industry standards organizations.
I submit this issue for your study when you consider ways to modernize the antitrust laws:
Industry standards organizations should be encouraged to establish mandatory disclosure and licensing procedures and to negotiate collectively for licensed intellectual property, so as to guarantee that standards they promulgate for the information technology infrastructure are “open standards.”
An open standard specifies technology that anyone anywhere can freely implement, for free. Its essential goal is ubiquity, and such standards make the information technology infrastructure possible. Consider how open standards underlie the worldwide web and the Internet in software such as browsers and electronic mail systems. Intellectual property (IP) licenses and royalties do not stand in the way of sending and receiving email or viewing web pages. Through the collective action of companies and individuals in standards organizations such as the World Wide Web Consortium (W3C) and the Internet Engineering Task Force (IETF), open standards for the information technology infrastructure are widely implemented without payment of royalties.
Yet intellectual property sometimes stands in the way of open standards. For a time Microsoft as well as open source industry standard browsers were under threat of a patent with a $500+ million price tag, and just a few days ago there was a report of more than $1 billion at risk for a patent infringement lawsuit relating to industry standard Java.
This is no private matter for private resolution. National security and economic stability are at stake when industry standard technology is threatened by intellectual property claims. For example, the unavailability of Microsoft’s patent-pending Sender ID technology means that open source email software can’t help protect our country from spam and electronic fraud.
Collective action is needed to protect open standards from patents and other IP monopolies. This means that industry standards organizations need the freedom to act collectively, and to negotiate collectively, to protect open standards from IP encumbrances.
W3C is the first important standards organization to adopt a patent policy for its members – essentially all the major technology companies in the world – that mandates disclosure of members’ IP relating to W3C standards, imposes a royalty-free licensing regime for that IP, and provides that a collective “Patent Advisory Group” be formed to investigate licensing alternatives.
Other industry standards organizations should be encouraged by the antitrust law to follow suit. Industry standards organizations should be allowed to act collectively in furtherance of open standards for the worldwide information technology infrastructure.
I will welcome an opportunity to comment further on this at an appropriate time convenient to the Commission.
Lawrence E. Rosen
1 This Comment does not represent the official position of any of the organizations mentioned herein.