www.kegel.com/remedy/remedy2.html
Which practices towards large users should be prohibited? The Court of Appeals affirmed that Microsoft has a monopoly on Intel-compatible PC operating systems, and that the company's market position is protected by a substantial barrier to entry (p. Furthermore, the Court of Appeals affirmed that Microsoft is liable under Sherman Act 2 for illegally maintaining its monopoly by imposing licensing restrictions on OEMs, IAPs (Internet Access Providers), ISVs (Independent Software Vendors), and Apple Computer, by requiring ISVs to switch to Microsoft's JVM (Java Virtual Machine), by deceiving Java developers, and by forcing Intel to drop support for cross-platform Java tools. The fruits of Microsoft's statutory violation include a strengthened Applications Barrier to Entry and weakened competition in the Intel-compatible operating system market; In the following sections I outline the basic intent of the proposed final judgment, point out areas where the intent and the implementation appear to fall short, and propose amendments to the Proposed Final Judgment (or PFJ) to address these concerns. Understanding the Proposed Final Judgment In crafting the Final Judgment, the judge will face the following questions: * 21 How should terms like "API", "Middleware", and "Windows OS" be defined? Microsoft will not retaliate against OEMs who support competitors to Windows, Internet Explorer (IE), Microsoft Java (MJ), Windows Media Player (WMP), Windows Messenger (WM), or Outlook Express (OE). Microsoft will publish the wholesale prices it charges the top 20 OEMs (Original Equipment Manufacturers) for Windows. Microsoft will allow OEMs to customize the Windows menus, desktop, and boot sequence, and will allow the use of non-Microsoft bootloaders. Microsoft will publish on MSDN (the Microsoft Developer Network) the APIs used by IE, MJ, WMP, WM, and OE, so that competing web browsers, media players, and email clients can plug in properly to Windows. Microsoft will license on reasonable terms the network protocols needed for non-Microsoft applications or operating systems to connect to Windows servers. Microsoft will not force business partners to refrain from supporting competitors to Windows, IE, MJ, WMP, WM, or OE. Microsoft will let users and OEMs remove icons for IE, MJ, WMP, WM, and OE, and let them designate competing products to be used instead. Microsoft will license on reasonable terms any intellectual property rights needed for other companies to take advantage of the terms of this settlement. This agreement lets Microsoft keep secret anything having to do with security or copy protection. The agreement can be summed up in one breath as follows: Microsoft agrees to compete somewhat less vigorously, and to let competitors interoperate with Windows in exchange for royalty payments. Considering all of the above, one should read the detailed terms of the Proposed Final Judgment, and ask one final question: * 30 Is the Proposed Final Judgment in the public interest? In the sections below, I'll look in more detail at how the PFJ deals with the above questions. How should terms like "API", "Middleware, and "Windows OS" be defined? The definitions of various terms in Part VI of the PFJ differ from the definitions in the Findings of Fact and in common usage, apparently to Microsoft's benefit. Here are some examples: Definition A: "API" The Findings of Fact ( 2) define "API" to mean the interfaces between application programs and the operating system. However, the PFJ's Definition A defines it to mean only the interfaces between Microsoft Middleware and Microsoft Windows, excluding Windows APIs used by other application programs. For instance, the PFJ's definition of API might omit important APIs such as the Microsoft Installer APIs which are used by installer programs to install software on Windows. Definition J: "Microsoft Middleware" The Findings of Fact ( 28) define "middleware" to mean application software that itself presents a set of APIs which allow users to write new applications without reference to the underlying operating system. Definition J defines it in a much more restrictive way, and allows Microsoft to exclude any software from being covered by the definition in two ways: 1. By changing how Microsoft distributes Windows or its middleware. For example, if Microsoft introduced a version of Windows which was only available via the Windows Update service, then nothing in that version of Windows would be considered Microsoft Middleware, regardless of whether Microsoft added it initially or in a later update. This is analogous to the loophole in the 1995 consent decree that allowed Microsoft to bundle its browser by integrating it into the operating system. Definition K: "Microsoft Middleware Product" Definition K defines "Microsoft Middleware Product" to mean essentially Internet Explorer (IE), Microsoft Java (MJ), Windows Media Player (WMP), Windows Messenger (WM), and Outlook Express (OE). The inclusion of Outlook Express and not Outlook is questionable, as Outlook (different and more powerful than Outlook Express) is a more important product in business, and fits the definition of middleware better than Outlook Express. The exclusion of Microsoft Office is questionable, as many components of Microsoft Office fit the Finding of Fact's definition of middleware. For instance, there is an active market in software written to run on top of Microsoft Outlook and Microsoft Word, and many applications are developed for Microsoft Access by people who have no knowledge of Windows APIs. Definition U: "Windows Operating System Product" Microsoft's monopoly is on Intel-compatible operating systems. Yet the PFJ in definition U defines a "Windows Operating System Product" to mean only Windows 2000 Professional, Windows XP Home, Windows XP Professional, and their successors. This purposely excludes the Intel-compatible operating systems 31 Windows XP Tablet PC Edition and Windows CE; This is but one example of how Microsoft can evade the provisions of the Final Judgment by shifting its efforts away from the Operating Systems listed in Definition U and towards Windows XP Tablet Edition, Windows CE, Pocket PC, X-Box, or some other Microsoft Operating System that can run Windows applications. How should the Final Judgment erode the Applications Barrier to Entry? The PFJ tries to erode the Applications Barrier to Entry in two ways: 1. By forbidding retaliation against OEMs, ISVs, and IHVs who support or develop alternatives to Windows. By taking various measures to ensure that Windows allows the use of non-Microsoft middleware. A third option not provided by the PFJ would be to make sure that Microsoft raises no artificial barriers against non-Microsoft operating systems which implement the APIs needed to run application programs written for Windows. The 33 Findings of Fact (52) considered the possibility that competing operating systems could implement the Windows APIs and thereby directly run software written for Windows as a way of circumventing the Applications Barrier to Entry. This is in fact the route being taken by the Linux operating system, which includes middleware (named WINE) that can run many Windows programs. By not providing some aid for ISVs engaged in making Windows-compatible operating systems, the PFJ is missing a key opportunity to encourage competition in the Intel-compatible operating system market. This prohibits ISVs from using the information for the purpose of writing operating systems that interoperate with Windows programs. The PFJ as currently written appears to lack an effective enforcement mechanism. It does provide for the creation of a Technical Committee with investigative powers, but appears to leave all actual enforcement to the legal system. What information needs to be released to ISVs to encourage competition, and under what terms? The PFJ provides for increased disclosure of technical information to ISVs, but these provisions are flawed in several ways: 1. This allows Microsoft to bypass all competing middleware simply by changing the requirements shortly before the deadline, and not informing ISVs. Unreasonable Re...
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