Sponsored by
INTRODUCTION
The recent antitrust settlement
reached between the U.S. DOJ and convicted software monopolist Microsoft Corp. has
enough loopholes to sew a circus tent. That would be bad enough if it was merely
a toothless, self-cancelling document -- in legal terms, "a nullity."
But far worse, this "settlement" document is actually a naked power grab.
It actually grants to Microsoft extralegal powers beyond what it had at the beginning
of the trial, tightening Microsoft's vise-grip on the software marketplace instead
of loosening it. Most amazing of all, there is not one whiff of punishment for all
the years of cheating that Microsoft has apparently gotten away with, nor a hint
of an admission of guilt.
In an effort to clarify exactly how a monopolist reacts to the golden opportunity
for absolute domination that this document presents, let us listen in on a simulated
conversation between a neutral examiner and a high official of the convicted monopolist's
inner circle under the influence of a safe, federally-approved truth-enhancing substance.
(If you prefer, just imagine the convicted monopolist has merely had a few too many
brewskies and is blabbering on like a blithering idiot while reading the court document.)
Examiner's quotes (in yellow) are taken verbatim from the settlement
document as of November 2001.
TO UNDERSTAND THE START, START AT THE END
EXAMINER: "Let us start with the definitions, shall we?"
MSFT: "Yes, of course. Words mean things, whatever we want them to mean."
EXAMINER:
A. "Application Programming
Interfaces (APIs)" means the interfaces, including any associated
callback interfaces, that Microsoft Middleware running on a Windows Operating System
Product uses to call upon that Windows Operating System Product in order to obtain
any
services from that Windows Operating System Product.
MSFT: "Right. APIs do not
include anything that is a part of the Windows operating system itself. And they
don't include anything that is part of the application programs, or the Internet.
So to avoid government regulation of our APIs, we will make sure that there are
no significant APIs in our Middleware. We will put the APIs (the ones that really
mean anything) on other products besides Middleware.... like .NET. In other words,
APIs which run on one operating system (.NET) and call a different operating system
(on your PC, remotely via the Web) are exempt from regulation. <yawn>
EXAMINER:
B."Communications Protocol"
means the set of rules for information exchange to accomplish
predefined tasks between a Windows Operating System Product on a client computer
and
Windows 2000 Server or products marketed as its successors running on a server computer
and connected via a local area network or a wide area network. These rules govern
the
format, semantics, timing, sequencing, and error control of messages exchanged over
a
network. Communications Protocol shall not include protocols used to remotely administer
Windows 2000 Server and products marketed as its successors.
MSFT: "All our communication
software will be embedded with code to administer Windows2000 Server and its successors.
This code will be tightly integrated for security purposes, but will be disabled
by default. So we will not have any Communications Protocols that can be regulated
according to this definition." <gurgle>
EXAMINER:
C."Consideration"
means any monetary payment or the provision of preferential licensing
terms; technical, marketing, and sales support; enabling programs; product information;
information about future plans; developer support; hardware or software certification
or
approval; or permission to display trademarks, icons or logos.
MSFT: "Doesn't matter. We
have a third party that can produce counter-marketing materials to embarass any
potentially uncooperative lackey.... er, I mean, partner."
EXAMINER:
D."Covered OEMs"
means the 20 OEMs with the highest worldwide volume of licenses of
Windows Operating System Products reported to Microsoft in Microsoft's fiscal year
preceding the effective date of the Final Judgment. The OEMs that fall within this
definition
of Covered OEMs shall be recomputed by Microsoft as soon as practicable after the
close of
each of Microsoft's fiscal years.
MSFT: "Does that mean licenses
paid for, licenses actually delivered to customers, licenses committed to, or licenses
actually registered by the enduser? Never mind, it can mean anything we want it
to mean. So we create 20 shell companies, or sign up 20 idiots, and sign them up
for 20 million licenses each, non-transferable. That lets us do whatever we want
to the 20 'real' companies that actually sell that much hardware each year."
<sigh>
EXAMINER:
E."Documentation"
means all information regarding the identification and means of using APIs
that a person of ordinary skill in the art requires to make effective use of those
APIs. Such
information shall be of the sort and to the level of specificity, precision and
detail that
Microsoft customarily provides for APIs it documents in the Microsoft Developer
Network
("MSDN").
MSFT: "No person of merely
ordinary skills has ever been able to make sense of our APIs. And besides, the key
pieces of code and documentation are not always provided through MSDN; they may
be delivered by private courier or secure datalink to those who agree to our unwritten
terms." <hiccup>
EXAMINER:
F."IAP" means
an Internet access provider that provides consumers with a connection to the
Internet, with or without its own proprietary content.
MSFT: "Hmmm, doesn't say anything
about businesses, just consumers. So if we only make Internet access available through
a shell company that resells the access to businesses that resell to consumers,
then we can do anything we want." <sniffle>
EXAMINER:
G."ICP" means
an Internet content provider that provides content to users of the Internet by
maintaining Web sites.
MSFT: "Yeah, whatever. If
we only make Website maintenance available as a service through a shell company
that charges content creators to display their content on the Web, then we can do
anything we want." <gurgle>
EXAMINER:
H."IHV" means
an independent hardware vendor that develops hardware to be included in or
used with a Personal Computer running a Windows Operating System Product.
MSFT: "Right, they're only
'independent' if they depend on us, but they're not an IHV if they only sell hardware
with non-Microsoft operating systems. <giggle> This is almost too easy....
Unless we already 'own' them, we don't have to give them a thing. No information!
No codes!" <snork>
EXAMINER:
I."ISV" means
an entity other than Microsoft that is engaged in the development or marketing
of software products designed to run on a Windows Operating System Product.
MSFT: "Supercool. They're
only an 'independent' if they depend on us. But they're not covered by this settlement
if they only sell software for non-Microsoft operating systems.... So we don't have
to give them a thing. They will never be able to make their non-Windows products
interact with our Windows-only products." <smirk>
EXAMINER:
J."Microsoft Middleware"
means software code that
1.Microsoft distributes separately from a Windows Operating System Product to update
that Windows Operating System Product;
2.is Trademarked;
3.provides the same or substantially similar functionality as a Microsoft Middleware
Product; and
4.includes at least the software code that controls most or all of the user interface
elements of that Microsoft Middleware.
Software code described as part of, and distributed separately to update, a Microsoft
Middleware Product shall not be deemed Microsoft Middleware unless identified as
a new
major version of that Microsoft Middleware Product. A major version shall be identified
by a
whole number or by a number with just a single digit to the right of the decimal
point.
MSFT: "Yes, we had a version
number for the product immediately following MS Word 2.0 for Windows. It was called
MS Word 6.0 for Windows. And WindowsNT version 1.0 was marketed as "NT 3.1".
We already did that. Oh, and we don't use version numbers any more, we use year
numbers. Since our future Middleware has no version number, it is not regulated
by this settlement." <giggle>
EXAMINER:
K."Microsoft Middleware
Product" means
1.the functionality provided by Internet Explorer, Microsoft's Java Virtual Machine,
Windows Media Player, Windows Messenger, Outlook Express and their successors
in a Windows Operating System Product, and
2.for any functionality that is first licensed, distributed or sold by Microsoft
after the
entry of this Final Judgment and that is part of any Windows Operating System
Product
a.Internet browsers, email client software, networked audio/video client
software, instant messaging software or
b.functionality provided by Microsoft software that --
i.is, or in the year preceding the commercial release of any new
Windows Operating System Product was, distributed separately by
Microsoft (or by an entity acquired by Microsoft) from a Windows
Operating System Product;
ii.is similar to the functionality provided by a Non-Microsoft Middleware
Product; and
iii.is Trademarked.
Functionality that Microsoft describes or markets as being part of a Microsoft Middleware
Product (such as a service pack, upgrade, or bug fix for Internet Explorer), or
that is a
version of a Microsoft Middleware Product (such as Internet Explorer 5.5), shall
be
considered to be part of that Microsoft Middleware Product.
MSFT: "Hee hee. It's a 'middleware
product' if it is embedded in the operating system.... But it's just 'middleware'
if it is distributed separately. But if it is distributed by a Microsoft partner
controlled 70% or 80% by Microsoft through stock ownership, then it's not 'middleware'
because it is not distributed by Microsoft or a wholly owned subsidiary. Yee-haw.
So we only have to deal with the regulation of "middleware products" embedded
in the operating system. We'll deal with it." <belch>
EXAMINER:
L."Microsoft Platform
Software" means (i) a Windows Operating System Product and/or (ii) a
Microsoft Middleware Product.
MSFT: "Right. If the key APIs
are not in the Windows operating system and are not in any of the 'middleware product'
class of embedded capabilities.... Well, like if we had somebody else distribute
the APIs for us, as part of some package, and we controlled that company but did
not own them. Yeah, cool. We ship the APIs as a standalone product through a third-party
company, or sitting on a Web server somewhere in Idaho. But we don't have to divulge
any details of the APIs because they wouldn't have a version number. They would
be a standalone product, but without a version number, then they're not 'middleware,'
so they are not covered by 'middleware' clauses. Since they are not part of Windows,
they are not a 'middleware product.' Good to go." <aaghemm>
EXAMINER:
M."Non-Microsoft Middleware"
means a non-Microsoft software product running on a Windows
Operating System Product that exposes a range of functionality to ISVs through published
APIs, and that could, if ported to or made interoperable with, a non-Microsoft Operating
System, thereby make it easier for applications that rely in whole or in part on
the
functionality supplied by that software product to be ported to or run on that non-Microsoft
Operating System.
MSFT: "Sure, like we wouldn't
give away free copies of comparable 'Microsoft middleware' to put them out of business.
Except that it's not 'Microsoft middleware' if it has no version number, so it would
not be regulated by this settlement. And since we don't use version numbers any
more, just years...." <yawn>
EXAMINER:
N."Non-Microsoft Middleware
Product" means a non-Microsoft software product running on a
Windows Operating System Product (i) that exposes a range of functionality to ISVs
through
published APIs, and that could, if ported to or made interoperable with, a non-Microsoft
Operating System, thereby make it easier for applications that rely in whole or
in part on the
functionality supplied by that software product to be ported to or run on that non-Microsoft
Operating System, and (ii) of which at least one million copies were distributed
in the United
States within the previous year.
MSFT: "Okay, so if it's Microsoft,
then it's 'middleware' if it's standalone, and a 'middleware product' if it's part
of Windows. But if it's not Microsoft, then it's 'middleware' if it's standalone,
and a 'middleware product' if a million copies were distributed in the U.S. in the
last year. So giving away a million copies of something is equivalent to integrating
it with Windows? Fine, I like those odds!"
EXAMINER:
O."OEM" means
an original equipment manufacturer of Personal Computers that is a licensee
of a Windows Operating System Product.
MSFT: "Like I said before,
if we don't already control them, we don't have to call them an OEM. If they sell
only non-Microsoft operating systems, we don't have to cooperate with them at all."
<snergle>
EXAMINER:
P."Operating System"
means the software code that, inter alia, (i) controls the allocation and
usage of hardware resources (such as the microprocessor and various peripheral devices)
of
a Personal Computer, (ii) provides a platform for developing applications by exposing
functionality to ISVs through APIs, and (iii) supplies a user interface that enables
users to
access functionality of the operating system and in which they can run applications.
MSFT: "Mighty generous, that
definition. If we ship the APIs separately -- er, like, on the Web -- then that
says that Windows is not even an operating system! No regulation! Man, we sure get
good value for our legal dollar." <smirk>
EXAMINER:
Q."Personal Computer"
means any computer configured so that its primary purpose is for use
by one person at a time, that uses a video display and keyboard (whether or not
that video
display and keyboard is included) and that contains an Intel x86 compatible (or
successor)
microprocessor. Servers, television set top boxes, handheld computers, game consoles,
telephones, pagers, and personal digital assistants are examples of products that
are not
Personal Computers within the meaning of this definition.
MSFT: "Right, they let us
extend our monopoly into game boxes, tv, servers, handhelds, phones, PDAs, whatever.
We could even sell NT-based stuff on Alpha or PPC or whatever, and it wouldn't be
covered by this settlement. Case closed!" <sniffle>
EXAMINER:
R."Timely Manner"
means at the time Microsoft first releases a beta test version of a Windows
Operating System Product that is distributed to 150,000 or more beta testers.
MSFT: "Didn't they tell you?
We don't beta test with more than 148,000 testers per version."
EXAMINER:
S."Top-Level Window"
means a window displayed by a Windows Operating System Product
that (a) has its own window controls, such as move, resize, close, minimize, and
maximize,
(b) can contain sub-windows, and (c) contains user interface elements under the
control of at
least one independent process.
MSFT: "Right. Windows is GUI
and GUI is Windows. Next definition."
EXAMINER:
T."Trademarked"
means distributed in commerce and identified as distributed by a name other
than Microsoft or Windows that Microsoft has claimed as a trademark
or service mark by
(i) marking the name with trademark notices, such as, or, in connection with a product
distributed in the United States; (ii) filing an application for trademark protection
for the name
in the United States Patent and Trademark Office; or (iii) asserting the name as
a trademark
in the United States in a demand letter or lawsuit. Any product distributed under
descriptive
or generic terms or a name comprised of the Microsoft or Windows trademarks
together
with descriptive or generic terms shall not be Trademarked as that term is used
in this Final
Judgment. Microsoft hereby disclaims any trademark rights in such descriptive or
generic
terms apart from the Microsoft or Windows trademarks, and hereby abandons
any such
rights that it may acquire in the future.
MSFT: "Silly. What we call
it doesn't matter. It's where the APIs are that matters. Oh, and that boot sector.
Sshshshhh, don't tell anybody.... as long as we own the boot sector, we RULE!"
<snort>
EXAMINER:
U."Windows Operating
System Product" means the software code (as opposed to source code)
distributed commercially by Microsoft for use with Personal Computers as Windows
2000
Professional, Windows XP Home, Windows XP Professional, and successors to the
foregoing, including the Personal Computer versions of the products currently code
named
"Longhorn" and "Blackcomb" and their successors, including upgrades,
bug fixes, service
packs, etc. The software code that comprises a Windows Operating System Product
shall be
determined by Microsoft in its sole discretion.
MSFT: "Ha! Doesn't even cover
DOS-based stuff. We can keep spreading that stuff around any way we want, it's not
covered by this settlement. Oh, and that last sentence.... Worth a hundred billion
dollars if it's worth a penny! If we say it's not Windows, it's not Windows! If
we say it's not an operating system, it's not an operating system. YESS!! All the
other definitions are now meaningless. Just give me that last sentence!" <sigh>
ABOUT THAT LAST SENTENCE, WILLIE....
Truly, to attempt to regulate a software company using predefined legalisms is like
trying to grab an eel with one hand. Slippery, slick, and subtle, Microsoft has
cleverly inserted enough "weasel-words" and trapdoors in this settlement
to build several alternative escape scenarios. The slickest part of all is to put
the definitions at the end of the document, where they legally overrule all that
comes before, and to place the loosest definition of all at the very end of the
document, slyly positioned to trump any preceding malarkey.
That last sentence ostensibly was inserted to protect Microsoft from having to ship
code that it did not choose to -- so that Microsoft would not have to put its moniker
on a product containing a rival company's code (such as Java or Netscape, for example).
But its meaning is a classic double-edged sword. Microsoft will happily invert it
to state that any product which Microsoft deems as a non-operating system -- including
its own products, like Windows -- are legally barred from court action, because
Microsoft is given the sole discretion as to what is an operating system and what
is not. If Microsoft says "this code that we sell as Microsoft Windows is not
a Windows Operating System Product," then no court can argue otherwise, because
the last sentence states that Microsoft has "sole discretion" as to what
it will allow to fall into that legal category known as Windows Operating System
Products. This is because, since that sentence comes at the end of the document
and at the end of the definitions, it legally trumps all that came before it.
If Microsoft chooses to push the envelope a bit, they can even claim that a competitor's
product is a Windows Operating System Product, because the last sentence
says that the court grants Microsoft the "sole discretion" -- taking that
discretion not only out of the hands of the courts, but out of the hands of competing
companies as well. That discretion covers "the software code" -- not just
"the Microsoft software code" -- that Microsoft chooses. These
clauses grant Microsoft the extralegal power to overrule federal trade and copyright
offices, as well as any court below the Supreme Court level. And it matters not
what the document "meant" to say; it only matters what it "does"
say. It "does" say that no matter what a competitor creates via innovation
or discovery, Microsoft can decide to take it and make it part of Windows. This
is a license to hoist the Jolly Roger and sail the seven seas, pirating any rival
code that Microsoft chooses, "in its sole discretion."
That's where Microsoft's lawyers always have an advantage over the legal representatives
of governmental entities. Since Microsoft knows what it wants to say, and knows
a thousand different ways to say it, they only have to find ONE way to say it that
the government does not recognize as outrageously advantageous to Microsoft. It
is to Microsoft's advantage that these decisions are made at the highest levels
of the legal system, because the farther one moves up the legal ladder, the more
the judges understand law, and the less they understand technology. That has been
Microsoft's trump card all along.
