FAX COVER SHEET
Ramon G. Pantin
Dear Department of Justice representative,
Attached is an HTML document with my comments about the settlement proposed. I have included my background and contact information in that document.
Please feel free to contact me at:
My name is Ramon G. Pantin, I have been in involved in commercial Operating System development since 1989. I have worked on the design and implementation of a large variety of Operating Systems and system software (operating system components) including chronologically:
I have also taught operating systems design classes at Universidad Simon Bolivar (Venezuela) in 1989 and professional system software classes, both for UNIX and Windows NT.
I consider myself eminently well versed as a software enginner with 12 years of hands on operating system design and development.
The issues herein are of great importance to me and the industry that I am a participant of.
I appreciate the opportunity to comment about the proposed settlement.
Below is a long list of comments. Each comment's name is of the form "Comment X.Y" where X is the major section of the proposed settlement within which the commented terms are discussed, and Y is simply a sequential number of the comments that I have written and it is actually independent of the acutal comment numbering within the proposed settlement itself. Each comment includes the appropriate reference to text in question within the proposed settlement document.
I am available for comment and clarification in any and all issues hereing, preferrably thorugh email, please contact me at:
Ramon G. Pantin
Ramon G. Pantin
Section III.A reads:
There are 3 problems with this section:
Section III.A should be not be constrained or qualified in these ways. It should be replaced with this text:
Section III.A.1 reads:
"1. developing, distributing, promoting, using, selling, or licensing any software that competes with Microsoft Platform Software or any product or service that distributes or promotes any Non-Microsoft Middleware;"
There are 2 problems in this section:
Section III.A1 should be not be constrained or qualified in these ways. The existing Section III.A.1 should be left as part of the text and a new paragraph should be added to the list. Thus Section III.A.4 (a new paragraph) should be:
Section III.A.2 reads:
"2. shipping a Personal Computer that (a) includes both a Windows Operating System Product and a non-Microsoft Operating System, or (b) will boot with more than one Operating System; or"
Microsoft currently forbids OEMs, or it imposes Market Development Agreement penalities or it withholds Consideration from OEMs when they offer for sell Personal Computers without a Microsoft Operating System. Because of the earlier consent decree imposed on Microsoft, instead of requiring that every Personal Computer include a Microsoft Operatin System, Microsoft requires that for each model of Personal Computer offered by the OEM that each Personal Computer of that model be sold with a Microsoft Operating System. If this isn't done, Market Development Agreement penalties or Considerations are withheld from the OEM. Theoretically, the OEM is free to offer a model of Personal Computers for which it expects to sell such a high fraction of them without a Microsoft Operatin System, that offering them in that way doesn't cause harm or competitive disadvantage to the OEM. In reality, node of the models of Personal Computers are expected to sell in any large enough percentage without a Microsoft Operating System, thus the OEM ends up paying for a Microsoft Operating System for each Personal Computer for each model that it offers, thus it is forced to always pay for a Microsoft Operating System.
Microsoft, additionally requires that the end user of the Personal Computer accept a license agreement, and the it indicates that if the license agreement is not accepted, that the Microsoft Operating System product should not be used and that the Personal Computer manufacturer should be contacted for a refund.
Given Microsoft's creativity in constraining OEMs in their business decisions, a broad based term should also be included. For example, Microsoft could technologically constraint the OEM from supporting non-Microsoft Operating Systems, for example by Microsoft imposing on the OEM technological standards that must be used in the Personal Computer design and because of intellectual property reasons the use of these standards prevent non-Microsoft Operating Systems from functioning on the Personal Computer (for example because Microsoft might have patents on the technology).
Section III.A.2 should be augmented with these subclauses to allow consumer to purchase Personal Computers without a Microsoft Operating System:
"2. shipping a Personal Computer that (a) includes both a Windows Operating System Product and a non-Microsoft Operating System, or (b) will boot with more than one Operating System, or (c) does not include any Operating System of any kind, or (d) includes a Windows Operating System Product and provides for the removal of the Windows Operating System Product during the startup of the Personal Computer, as long as the Windows Operating System has not been used by the consumer, and allows for a refund to be issued to the comsumer for the price of the operating system, or (e) in any way supports or provides non-Microsoft Operating Systems; or"
Section III.A by virtue of enumerating the activities that the OEM "is or is contemplating" allows Microsoft to retaliate for any activities not explicitly enumerated in this list (III.A.1, III.A.2, III.A.3, etc). A broad term should be added that prevents Microsoft from any other cause for retaliation. Section III.A.5 should be added (Section III.A.4 was proposed to be added above in Comment III.2):
5. engaging in any lawful activity by any means by itself or in cooperation with any party.
Section III.A in the fith paragraph (the paragraph under III.A.3) reads in its last two sentences:
"Microsoft shall not terminate a Covered OEM’s license for a Windows Operating System Product without having first given the Covered OEM written notice of the reasons for the proposed termination and not less than thirty days’ opportunity to cure. Notwithstanding the foregoing, Microsoft shall have no obligation to provide such a termination notice and opportunity to cure to any Covered OEM that has received two or more such notices during the term of its Windows Operating System Product license."
There are three problems with these sentences:
Section III.A, last paragraph reads:
"Nothing in this provision shall prohibit Microsoft from providing Consideration to any OEM with respect to any Microsoft product or service where that Consideration is commensurate with the absolute level or amount of that OEM’s development, distribution, promotion, or licensing of that Microsoft product or service."
These issues should be addressed:
Section III.B, first paragraph reads:
"B. Microsoft’s provision of Windows Operating System Products to Covered OEMs shall be pursuant to uniform license agreements with uniform terms and conditions. Without limiting the foregoing, Microsoft shall charge each Covered OEM the applicable royalty for Windows Operating System Products as set forth on a schedule, to be established by Microsoft and published on a web site accessible to the Plaintiffs and all Covered OEMs, that provides for uniform royalties for Windows Operating System Products, except that:"
Section III.C reads:
"C. Microsoft shall not restrict by agreement any OEM licensee from exercising any of the following options or alternatives:"
This should read:
C. Microsoft shall not restrict by agreement or any other means any OEM licensee from exercising any of the following options or alternatives:
For example, Microsoft could, through verbal or written communication, or through the quality of service that it provides the OEM restrict the OEM, or threaten the OEM from exercising the alternatives. Microsoft has in the past retaliated against OEMs, particularly IBM and Gateway, as is described in detail in the Findings of Fact through means other than agreements. For example by witholding IBM participation in marketting programs, or threatening Gateway with sofware audits.
Section III.C.1 and others enumerate:
this list should be:
icons, shortcuts, folders, appliactions, explorer hierarchies or menu entries
Section III.C.1 ends in "with respect to non-Microsoft and Microsoft products." This should be changed to read: ""with respect to non-Microsoft and Microsoft products or technologies that offer similar types of functionality." For example, the technology might be provided by a network service and not by a product installed in the Personal Computer, how the technology is provided should not be a reason for allowing Microsoft to retaliate or discriminate.
In general, section III.C.1 and throughout the document, it is assumed that the only way to allow applications or software facilities to be used is through "icons, shortcuts, or menu entries", when in reality, applications/middleware can also be activated by associating it with particular types of data, and when such types of data are accessed, the application associated with it is activated. For example, when a file with a given extension is accessed, or when a URL is accessed over the internet, the type of the data is determined and the application associated with that type of data is activated. It is vital that such associations be allowed in a non-discriminatory basis between Microsoft and non-Microsoft technologies. For example, when a Internet audio URL is accessed, the media player associated with the data type is invoked to cause the audio to be decoded and played. It is not unsusual for multiple competing technologies, such as Microsoft Media Player, Real Networks and Apple's Quicktime media players to be capable of supporting the same data types, thus the preservation of the setting chosen by the user is important. Discrimination in this area has occurred in the past against both Apple's Quicktime and Real Network's Real Player.
The document should be updated throughout to take into account this form of application activation through data type and file name extension associations.
Section III.C.2 reads:
"2. Distributing or promoting Non-Microsoft Middleware by installing and displaying on the desktop shortcuts of any size or shape so long as such shortcuts do not impair the functionality of the user interface."
The term shortcuts should be replaced with icons, because many types of items can be shown on the desktop and these are not limited to shortcuts. For example, applications, files, folders, etc.
Section III.C.3 reads:
"3. Launching automatically, at the conclusion of the initial boot sequence or subsequent boot sequences, or upon connections to or disconnections from the Internet, any Non-Microsoft Middleware if a Microsoft Middleware Product that provides similar functionality would otherwise be launched automatically at that time, provided that any such Non-Microsoft Middleware displays on the desktop no user interface or a user interface of similar size and shape to the user interface displayed by the corresponding Microsoft Middleware Product."
Section III.C.3 should read:
3. Launching automatically, at the conclusion of the initial boot sequence or subsequent boot sequences, or upon connections to or disconnections from the Internet, or at any other time, any Non-Microsoft software is allowed without this being subject to any restraint from Microsoft. Mechanisms (APIs, Protocols, Facilities, etc) present in a Microsoft Operating System that aids launching of Microsoft software at particular times should be documented and allowed to be accessed by non-Microsoft software without restraint.
It should be noted that the original Section III.C.3 precludes the implementation of IAP sign up sequences, OEM shells, end user tutorials that are desired to be lounched at the initial and subsequent boot sequences. For example the OEM might present an IAP sign up sequence until such a time when the user as made such a selection or when the user as indicated that it doesn't want to asked again in subsequent sign up sequences. The reason the Section III.C.3 precludes even the implementation in the initial boot sequence is because Microsoft can remove their own facilities from startup or from displaying a user interface, thus forcing the OEM to remove their facilities. Freedom of innovation and choice by the OEMs cannot be at the mercy of Microsoft's actions. For example, Microsoft might move such facilities to the second boot sequence and it might require that the system reboot after an initial boot sequence process, the OEMs would then not have the freedom to provide their facilities in the second boot sequence.
Section III.C.4 reads:
"4. Offering users the option of launching other Operating Systems from the Basic Input/Output System or a non-Microsoft boot-loader or similar program that launches prior to the start of the Windows Operating System Product."
This section should be augmented in this way:
4. Offering users the option of (a) launching other Operating Systems from the Basic Input/Output System; or (b) launching other Operating Systems from a non-Microsoft boot-loader or similar program that launches prior to the start of the Windows Operating System Product.; or (c) choosing to make a non-Microsoft boot-loader the default boot loader in the system; or (d) choosing to allow the end user to interactively direct the Basic Input/Output System or a non-Microsoft boot-loader or any other facility to remove a Microsoft Windows Operating System and to provide the Personal Computer owner to receive a refund for the cost of the Microsoft Windows Operating System from the OEM; or (e) to select a default Operating System that is a non-Microsoft Operating System, for example by allowing the default Operating System to start without user intervention after a timeout period; or (f) any other form of restraint that might cause an OEM to not preload non-Microsoft Operating systems in their Personal Computers (for example by having the Microsoft Operating System corrupt the disk occupied used by such non-Microsoft Operating Systems, or from denying supprt to OEMs for such product configurations, etc)..
Given the nature of existing restraints by Microsoft in this area, these additional clauses allow for less restraint by Microsoft on the OEMs actions.
Section III.D reads:
"D. Starting at the earlier of the release of Service Pack 1 for Windows XP or 12 months after the submission of this Final Judgment to the Court, Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and OEMs, for the sole purpose of interoperating with a Windows Operating System Product, via the Microsoft Developer Network (“MSDN”) or similar mechanisms, the APIs and related Documentation that are used by Microsoft Middleware to interoperate with a Windows Operating System Product. In the case of a new major version of Microsoft Middleware, the disclosures required by this Section III.D shall occur no later than the last major beta test release of that Microsoft Middleware. In the case of a new version of a Windows Operating System Product, the obligations imposed by this Section III.D shall occur in a Timely Manner."
The new section should thus read:
D. Starting at the earlier of the release of Service Pack 1 for Windows XP or 12 months after the submission of this Final Judgment to the Court, Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and OEMs, for the sole purpose of interoperating with a Windows Operating System Product, via the Microsoft Developer Network (“MSDN”) or successor developer program (if the MSDN program is discontinued or replaced by a new developer program, but such a program should be equally broadly available and equally non-discriminatory as the MSDN program was on the earliest date the proposed consent decree was filled with the Court by Microsoft and the Plaintiffs), the APIs, related Documentation, Protocols, File Formats, Data Formats, Certification/Validation Component Signatures (and Microsoft shall not restraint or deny such signature facilities or enablements), and any other technological mechanism that are used by Microsoft Middleware, Microsoft Application, Microsoft Hardware Products, or by newly introduced Microsoft Operating System features (that are similar to existing facilities available from third parties in the market) to interoperate with a Windows Operating System Product. In the case of a any new version of Microsoft Middleware or Microsoft Operating Systems, or Microsoft Application, the disclosures required by this Section III.D shall occur no later than the last major beta test release of that Microsoft Middleware. In the case of a new version of a Windows Operating System Product, the obligations imposed by this Section III.D shall occur in a Timely Manner.
Section III.E should be augmented where it reads "on reasonable and non-discriminatory terms" to read "on reasonable, non-discriminatory and non-royalty bearing terms." The imposition of per unit royalties as a condition to grant access to any Communication Protocol would allow Microsoft to exclude competitors from the market.
Section III.E reads:
"E. Starting nine months after the submission of this proposed Final Judgment to the Court, Microsoft shall make available for use by third parties, for the sole purpose of interoperating with a Windows Operating System Product, on reasonable and non-discriminatory terms (consistent with Section III.I), any Communications Protocol that is, on or after the date this Final Judgment is submitted to the Court, (i) implemented in a Windows Operating System Product installed on a client computer, and (ii) used to interoperate natively (i.e., without the addition of software code to the client operating system product) with a Microsoft server operating system product."
There are many issues with this section:
Section III.E should be replaced with:
E. Starting nine months after the submission of this proposed Final Judgment to the Court, Microsoft shall make available for use by third parties, for the sole purpose of interoperating with a Windows Operating System Product, on reasonable (without an up front fee and royalty free) and non-discriminatory terms (consistent with Section III.I), technical implementations for any Communications Protocol that is, on or after the date this Final Judgment is submitted to the Court, utilized by a Windows Operating System Product nstalled on a client computer to interoperate with (i) a Microsoft server operating system product, or (ii) a Windows Operating System Product. The means through which any such Communications Protocol shall be made available shall include:
Section III.F.1.a reads:
"a. developing, using, distributing, promoting or supporting any software that competes with Microsoft Platform Software or any software that runs on any software that competes with Microsoft Platform Software, or"
Microsoft has shown that it retaliates against OEMs when they support non-Microsoft software in general, not just Microsoft Platform Software, for example the retaliation against IBM because of IBM's intent to bundle SmartSuite with their Personal Computers as can be seen in the Findings of Fact.
Section III.F.1.a should be expanded to read:
a. developing, using, distributing, promoting or supporting any software that competes with Microsoft Platform Software, Microsoft Operating Systems, Microsoft Application Software, Microsoft Hardware or any other Microsoft supported technologies or any software that runs on any software that competes with Microsoft Platform Software, Microsoft Operatin Systems, Microsoft Application Software, Microsoft Hardware or any other Microsoft supported technologies; or
Section III.F.2 reads:
"2. Microsoft shall not enter into any agreement relating to a Windows Operating System Product that conditions the grant of any Consideration on an ISV’s refraining from developing, using, distributing, or promoting any software that competes with Microsoft Platform Software or any software that runs on any software that competes with Microsoft Platform Software, except that Microsoft may enter into agreements that place limitations on an ISV’s development, use, distribution or promotion of any such software if those limitations are reasonably necessary to and of reasonable scope and duration in relation to a bona fide contractual obligation of the ISV to use, distribute or promote any Microsoft software or to develop software for, or in conjunction with, Microsoft."
Section III.F.2 should read:
2. Microsoft shall not enter into any agreement relating to a Windows Operating System Product, Microsoft Application Software, Microsoft Hardware or any other Microsoft supported technologies, that conditions the grant of any Consideration on an ISV’s refraining from developing, using, distributing, or promoting any software that competes with Microsoft Platform Software, Microsoft Operatin Systems, Microsoft Application Software, Microsoft Hardware or any other Microsoft supported technologies or any software that runs on any software that competes with Microsoft Platform Software. Microsoft may not enter into any agreements that place limitations on an ISV’s development, use, distribution or promotion of any such software for any reason.
Microsoft has more than enough resources to all the software development that it requires, if it has to relly on outside parties to do software development, it must do so without placing limitations.
Section III.G.1 reads:
"G. Microsoft shall not enter into any agreement with:
These are the issues:
The whole exception should be removed and Section III.G.1should read:
G. Microsoft shall not enter into any agreement with:
Furthermore, the agreement that Microsoft might enter might require that the OEM doesn't distribute certain non-Microsoft Sofware without actually requiring the distribution of Microsoft technologies. Thus a new clause should be added, Section III.G.3:
3. any IAP, ICP, ISV, IHV or OEM that grants Consideration on the condition that such entity refrains in any way or percentage from distributing, promoting, using, or supporting, any non-Microsoft software or technologies
Section III.G.2 reads:
"G. Microsoft shall not enter into any agreement with:
Again the restriction is too narrow with respect to Microsoft's other means of distributing software, it should read:
2. any IAP or ICP that grants placement on the desktop or elsewhere in any Windows Operating System Product to that IAP or ICP on the condition that the IAP or ICP refrain from distributing, promoting or using any software that competes with Microsoft Middleware, Microsoft Platform Software, Microsoft Operatin Systems, Microsoft Application Software, Microsoft Hardware or any other Microsoft supported technologies
Section III.G contains this, it is the second to last paragraph in the section:
"Nothing in this section shall prohibit Microsoft from entering into (a) any bona fide joint venture or (b) any joint development or joint services arrangement with any ISV, IHV, IAP, ICP, or OEM for a new product, technology or service, or any material value-add to an existing product, technology or service, in which both Microsoft and the ISV, IHV, IAP, ICP, or OEM contribute significant developer or other resources, that prohibits such entity from competing with the object of the joint venture or other arrangement for a reasonable period of time."
Microsoft should be allowed to enter into these arrangements, but it should be allowed to require it to "prohibits such entity from competing with the object of the joint venture or other arrangement for a reasonable period of time.". Again, "reasonable period of time" is ambiguous and open ended, and non-compete clauses have no pro-competive role other than exclusionary when included in agreements by a Monopolist such as Microsoft. Joint development or joint services agreements should not be restricted in this manner. If an actual separate entity is formed, a joint venture that includes the incorporation or foundation of a separate independent legal entity, the entity in question could have non-competition restrictions placed on it, but not the shareholder companies themselves (i.e. Microsoft and the other party).
Section III.G, last paragraph, reads:
This Section does not apply to any agreements in which Microsoft licenses intellectual property in from a third party.
This statement, is very ambiguous and unqualified. The meaning of "Microsoft licenses intellectual property in from a third party" could easily mean that Microsoft products that include any third party intellectual propery are exempt from the section. Most Microsoft products contain third party software, certainly its operating systems do (for example the Veritas/Seagate backup software and the Veritas Volume Manager included in both Windows XP and Windows 2000; the BSD software included in Windows 2000 and Windws XP; the Mosaic sofware included in all version of Internet Explorer; the Java software included in Windows 2000 and Windows XP; the printing drivers and other device drivers from IHVs included in Windows 2000 and Windows XP; the amount of software licensed into these products is very large; etc). Additionally, there can also be other forms of intellectual licenses that apply to these and other products (for example licenses to use patents of third parties). If the clause is intended to mean something different from my interpretation, please explain what it is intended to mean, and what terms in that sentence ensures that only that meaning is allowed.
This sentence should be removed completely from this section. Alternatively, a sentence that says:
Where terms in this section would cause a third party who has licensed software or any other form of intellectual property to Microsoft to have its license agreement violated then the specific terms in this section that would cause such a license breach do not apply. Unless the third party, at its own discrtion, chooses to allow the specific violations under an agreement amendment. Violation of the license agreement means violation to the detriment of the interest of the third party and not violation to the detriment of Microsoft's interests. Additionally, Microsoft should proactively inform the Microsoft Internal Compliance Officer, the Technical Committee, and the Plaintiffs about the circumstances in question and provide, as priviledged communication and without violating the interests of the third party, all information required for their enforcement activities.
Section III.H.2 (the first such section, there are two such sections in Section III.H) reads:
"2. Allow end users (via a mechanism readily available from the desktop or Start menu), OEMs (via standard OEM preinstallation kits), and Non-Microsoft Middleware Products (via a mechanism which may, at Microsoft’s option, require confirmation from the end user) to designate a Non-Microsoft Middleware Product to be invoked in place of that Microsoft Middleware Product (or vice versa) in any case where the Windows Operating System Product would otherwise launch the Microsoft Middleware Product in a separate Top-Level Window and display either (i) all of the user interface elements or (ii) the Trademark of the Microsoft Middleware Product."
These are the issues:
Section III.H.2 (the first such section, there are two such sections in Section III.H) should read:
2. Allow end users (via a mechanism readily available from the desktop or Start menu), OEMs (via standard OEM preinstallation kits), and Non-Microsoft software and technologies (via a mechanism which may, at Microsoft’s option, require confirmation from the end user in a non-discriminatory and non-derrogatory manner) to designate a Non-Microsoft software or technologies to be invoked in place of any Microsoft Middleware, Microsoft Application or any Microsoft Operating System feature that existed in the market as a third party product prior to Microsoft's incorpration of such a feature into its Operating System (or vice versa) in any case where the Windows Operating System Product would otherwise launch the Microsoft Middleware Product, Microsoft Applications or any such Microsoft Operating System.
Section III.H.3 allows for "(b) seek such confirmation from the end user for an automatic (as opposed to user-initiated) alteration of the OEM’s configuration until 14 days after the initial boot up of a new Personal Computer". Such confirmation must be sought through non-discriminatory and non-derrogatory means (as outlined in Comment III.23). Additionally such confirmation from the end user must allow the user to reject the continued request for this confirmation by providing an easily visible checkbox that indicates: "would you like to be asked this question again in the future?" if the user doesn't want this question to be asked in the future it selects the checkbox and the question is never asked again (and the current settings remain unchanged).
Section III.H.3.2 (the second such section, there are two such sections in Section III.H) reads:
"2. that designated Non-Microsoft Middleware Product fails to implement a reasonable technical requirement (e.g., a requirement to be able to host a particular ActiveX control) that is necessary for valid technical reasons to supply the end user with functionality consistent with a Windows Operating System Product, provided that the technical reasons are described in a reasonably prompt manner to any ISV that requests them."
Section III.H.3.2 (the second such section, there are two such sections in Section III.H) should read:
"2. that designated Non-Microsoft software or technology fails to implement a reasonable technical requirement (e.g., a requirement to be able to host a particular ActiveX control) that is necessary for valid technical reasons to supply the end user with functionality consistent with a Windows Operating System Product, provided that the technical reasons and detailed and complete technical documentation and mechanisms (component signatures) are described in a reasonably prompt manner to all ISVs through the MSDN program or its successor. Addionally the valid technical reasons and any other information relevant to the reasons must be communicated to the Technical Committee, the Microsoft Internal Compliance Officer,the Plaintiffs and the ISVs in question."
The last paragraph of Section III.H.3 reads:
"Microsoft’s obligations under this Section III.H as to any new Windows Operating System Product shall be determined based on the Microsoft Middleware Products which exist seven months prior to the last beta test version (i.e., the one immediately preceding the first release candidate) of that Windows Operating System Product."
The last paragraph of Section III.H.3 should be removed completely. Microsoft can introduce new Microsoft Middleware, Microsoft Applications, Microsoft Technologies, Microsoft Hardware at any arbitrary point in time after the release of an Operating System product. In so far as those Microsoft technologies alter user's preferences and default system settings, saving and restoring those settings sould be supported through an Operating System mechanism and user interface that allows for these settings to be manipulated.
The first paragraphs of Section III.I reads:
"I. Microsoft shall offer to license to ISVs, IHVs, IAPs, ICPs, and OEMs any intellectual property rights owned or licensable by Microsoft that are required to exercise any of the options or alternatives expressly provided to them under this Final Judgment, provided that"
The text "shall offer to license" requires that licensing be offered, it doesn't require that it actually enter into such license agreements. The text should instead read:
I. Microsoft shall offer to license, and shall make its best effort to actually license, to ISVs, IHVs, IAPs, ICPs, and OEMs any intellectual property rights owned or licensable by Microsoft that are required to exercise any of the options or alternatives expressly provided to them under this Final Judgment, provided that
Section III.I.1 reads:
"1. all terms, including royalties or other payment of monetary consideration, are reasonable and non-discriminatory;"
Allowing for per unit royalties or prohibitive up front licensing fees might prevent Microsoft competitors from actually being able to participate competitibly in the relevant product markets. This Section III.I.1 should read instead:
"1. all terms, are reasonable and non-discriminatory. Royalties or other payments of monetary consideration are explicitly forbidden from the terms when the intellectual property is to be used only for interoperation with a Microsoft Operating System product."
For example such a license would not require royalties from a server Operating System to interoperate with a Microsoft Operating System for Personal Computers, but if the server Operating System makes use of the licensed intellectual property to interoperate with non-Microsoft Operating Systems for Personal Computers, then a royalty might be required by Microsoft.
Section III.I.2 reads:
"2. the scope of any such license (and the intellectual property rights licensed thereunder) need be no broader than is necessary to ensure that an ISV, IHV, IAP, ICP or OEM is able to exercise the options or alternatives expressly provided under this Final Judgment (e.g., an ISV’s, IHV’s, IAP’s, ICP’s and OEM’s option to promote Non-Microsoft Middleware shall not confer any rights to any Microsoft intellectual property rights infringed by that Non-Microsoft Middleware);"
Section III.I.3 reads:
"an ISV’s, IHV’s, IAP’s, ICP’s, or OEM’s rights may be conditioned on its not assigning, transferring or sublicensing its rights under any license granted under this provision;"
Not allowing the transferring or assignment of these parties rights under certain circumstances, for example under an acquisition, is inherently a form of discrimination. Given that the licenses are to be offered in a non-discriminatory fashion, it is important that such licenses once offered be available in the future and that the licensing not be restricted to a given period of time. If subsequent versions of technology become available, and new licenses are developped for that technology, the older licenses to the earlier technology should continue to be offered for the earlier verisions of the technology.
The paragraphs immediately after Section III.I.5 reads:
"Beyond the express terms of any license granted by Microsoft pursuant to this section, this Final Judgment does not, directly or by implication, estoppel or otherwise, confer any rights, licenses, covenants or immunities with regard to any Microsoft intellectual property to anyone."
Section III.J.2.b reads:
"that the licensee:
Microsoft shall not unreasonably dispute the licensee's assertions with respect to III.J.2.b, any individual member of the Technical Committee through direct communication with the prospective licensee can make a positive determination about the III.J.2.b requirement and inform Microsoft about its determination without any further Microsoft argument, dispute or delay about the prospective licensee meeting the III.J.2.b requirement (Court intervention shall not be required).
Section III.J.2.b should read:
(b) has a reasonable business need (as promptly and in a non-discriminating manner determined by Microsoft or any one individual member of the Technical Committee), for the API, Documentation or Communications Protocol for a planned or shipping product
Section III.J.2.b reads:
"that the licensee:
It should instead read:
(c) meets reasonable, objective and non-discriminatory standards (proposed by Microsoft and promptly approved by the Technical Committe in consultation with the Plaintiffs) for certifying the authenticity and viability of its business, the actual determination of the actual authenticity and viability of the business can be made by Microsoft or any one member of the Technical Committee after taking into consideration legal consultation from the Technical Committee's legal staff
Section J.2.d reads:
"that the licensee:
The issues are:
Section J.2.d should read:
(d) agrees to submit, at Microsoft's expense, any computer program using such APIs, Documentation or Communication Protocols to the Technical Committe for verification, to test for and ensure verification and compliance with Microsoft specifications (which Microsoft shall make available to the licensee) for use of the API or interface, which specifications shall be related to proper operation and integrity of the systems and mechanisms identified in this paragraph.
Section IV.A.2.a reads:
"a. Access during normal office hours to inspect any and all source code, books, ledgers, accounts, correspondence, memoranda and other documents and records in the possession, custody, or control of Microsoft, which may have counsel present, regarding any matters contained in this Final Judgment."
This should be expanded to include electronic forms of communication in electronic form, not printed form, because it is extremely hard to sift through information, such as source code, in non-electronic form.
Section IV.A.2.a should read:
a. Access during normal office hours to inspect any and all source code, source code control systems, bug or defect databases, design documents, build procedures, binary codes, books, ledgers, electronic ledgers, electronic databases, accounts, correspondence, memoranda, newsgroups, discussions forums, web sites and other documents and records in the possession, custody, or control of Microsoft, which may have counsel present, regarding any matters contained in this Final Judgment. Access to electronic forms of information shall be provided in electronic form and not in only in printed form.
Section IV.B.2 describes "The TC members shall be experts in software design and programming." section IV.B.2.c reads:
"c. shall perform any other work for Microsoft or any competitor of Microsoft for two years after the expiration of the term of his or her service on the TC."
Given that Microsoft competes in almost every software market conceivable, it is a strecth to request two years of non-compete agreement from the TC member. Two such years of non-compete could be provided only if Microsoft provides two such years of salary to the TC member with a yearly inflationary bonus adjustment per year.
Section IV.B.8.iii reads:
"(iii) obtain reasonable access to any systems or equipment to which Microsoft personnel have access;"
This should reads:
(iii) obtain reasonable access to any systems, services or equipment to which Microsoft personnel have access; services should include but not be limited to: authentication, file sharing, discussion forums, newsgroups, chat channels, source code control systems, bug/defect database systems, design management systems, document repositories, web sites, etc.
Section IV.D.4.d reads:
"d. No work product, findings or recommendations by the TC may be admitted in any enforcement proceeding before the Court for any purpose, and no member of the TC shall testify by deposition, in court or before any other tribunal regarding any matter related to this Final Judgment."
This is one of the most egregious terms of the settlement. Given that the Technical Committee has hardly any actual enforcement duties, other than monitoring, and the Technical Committee actually being an impartial participant in the actual history of Microsoft's interaction with third parties and Microsoft's possible violations of settlement terms, it is astonishing that this term mandates that the actual work product of the Technical Committee not be admissible as evidence of the settlement enforment activities.
Microsoft deifnitely over-reached by requesting this, this shows Microsoft's true intentions (another 5 years without actual enforcement plus maybe another 5 of further litigation), Microsoft should be forced to accept instead the contrary of this term.
It is an interesting legal question if any documents related to presummed antitrust violations are made the work product of the Technical Committee, then by IV.D.4.d and those documents being un-admissible, then what other documents could be used to initiate Court proceedings by the plaintiffs without any such documents being alleged by Microsoft as being derived from the TC's un-admissible work. How could the plaintiffs promptly produce equivalent analysis without it being under this gag order?
Section IV.D.4.d must read:
"d. All work product, findings or recommendations by the TC must be admitted in any enforcement proceeding before the Court for any purpose, and any member of the TC is herein explicitly allowed to testify by deposition, in court or before any other tribunal regarding any matter related to this Final Judgment."
If the Plaintiffs are not willing to mandate this rewritten IV.D.4.d they are engaging in blatant dereliction of duty of the antitrust enforcement offices and duties that they purport to serve.
Section IV.D.4.e reads:
"e. The TC may preserve the anonymity of any third party complainant where it deems it appropriate to do so upon the request of the Plaintiffs or the third party, or in its discretion."
It should read instead:
"e. The TC must preserve the anonymity of any third party complainant upon the request of the Plaintiffs or the third party. Where the TC deems it appropriate to do so, and it has not ben requested, by the Plaintiffs or the third party, the TC in its own discretion it may preserve the anonymity of any third party complainant."
Section V.A reads:
"A. Unless this Court grants an extension, this Final Judgment will expire on the fifth anniversary of the date it is entered by the Court."
The Final Judgement should last longer than five years. The actual initial antritrust violations by Microsoft occured more than five years ago and we are still without any form of remedy. The legal system works very slowly. By entering this Final Judgement, and Microsoft continuing its anti-competitive practices, it would probably take more than five years to resolve those further complaints. Given that the orignal D.O.J. vs Microsoft settlement that related to per computer unit licensing was ambiguous enough that it ended up being mostly ignored and full antritrust proceedings were required, it wouldn't surprise me if this agreement which is even more ambiguous and has many more loopholes means at Microsoft's disposal to circumvent its intent would not result in many more years of litigation without any real behaviour change on Microsoft's part.
Mandating an expiration only after Microsoft no longer has monopoly power in the market of Operating Systems for Personal Computers for Intel x86 or x86 compatible systems is more appropriate. Court proceedings or the under the parties agreement and Court supervision would be required for the settlement to expire. Otherwise a period longer than 5 years, at least 12 years should be mandated.
It must be observed how durable has Microsoft's monopoly been and that it was initially cemented through antitrust violations for which a Final Judgement with no teeth got the industry into its current state:
Dereliction of duty now from the Plaintiffs would mean that even under the most blatant violations of antritrust laws and astonishing findings of fact, that Microsoft would escape with a Final Judgement that is too short and very weak from many perspectives. 12 years of enforcement seem the minimal time for market conditions to actually have another opportunity to arise and for actual market change to actually occur.
Section V.B reads:
"B. In any enforcement proceeding in which the Court has found that Microsoft has engaged in a pattern of willful and systematic violations, the Plaintiffs may apply to the Court for a one-time extension of this Final Judgment of up to two years, together with such other relief as the Court may deem appropriate."
The Plaintiffs in any enforcement proceeding shall not be limited to only one extension of two years. If the Plaintiffs cannot request as a remedy to future Microsoft's violations of this settlement, then it is not clear if the Court can actually mandate a remedy that is not being requested. Additionally, limiting the length of the actual extension at this time and as part of this settlement seems beyond belief given that any enforcement will require the Court participation because there is no actual real enforcement (other than monitoring by the Technical Committee with its work product later bein un-admissible as court evidence and without the TC members being allowed as witnesses).
Section V.B should read:
B. In any enforcement proceeding in which the Court has found that Microsoft has engaged in a pattern of willful and systematic violations, the Plaintiffs may apply to the Court for an extension of this Final Judgment for up to ten years, together with such other relief as the Court may deem appropriate, which is hereby agreed by the parties that it is acceptable for it to be of any length as the Court deems appropriate.
Definition VI.A reads:
'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.'
Definition VI.A should be replaced by the definition in the Final Judgement entered by Judge Jackson (definition 7.b):
A. “Application Programming Interfaces (APIs)” means the interfaces, service provider interfaces, and protocols that enable a hardware device or an application, Middleware, or server Operating System to obtain services from (or provide services in response to requests from) Platform Software in a Personal Computer and to use, benefit from, and rely on the resources, facilities, and capabilities of such Platform Software.
If another definition is adopted, it should be explained why it is different from the one proposed.
Definition VI.B reads:
'B. “Communications Protocol” means the set of rules for information exchange to accomplish predefined tasks between a Windows Operating System Product and a server operating system product connected via a network, including, but not limited to, a local area network, a wide area network or the Internet. These rules govern the format, semantics, timing, sequencing, and error control of messages exchanged over a network.'
Definition VI.B should read:
'B. “Communications Protocol” means the set of rules for information exchange to accomplish tasks between a Windows Operating System Product and another operating system connected via a network, including, but not limited to, a local area network, a wide area network or the Internet. These rules govern the format, semantics, timing, sequencing, and error control of messages exchanged over a network.'
Definition VI.J reads:
'J. “Microsoft Middleware” means software code that
This is a very astonishing definition of Middleware, nowhere does it talk about software that provides APIs to other software components, which is core to any definition of Middleware. The definition of Non-Microsoft Middleware (VI.M) does seem appropriate to what Middleware is. Definition 7.q in Judge Jackson's Final Judgement should be seen for a reasonable defintion of Middleware:
'“Middleware” means software that operates, directly or through other software, between an Operating System and another type of software (such as an application, a server Operating System, or a database management system) by offering services via APIs or Communications Interfaces to such other software, and could, if ported to or interoperable with multiple Operating Systems, enable software products written for that Middleware to be run on multiple Operating System Products. Examples of Middleware within the meaning of this Final Judgment include Internet browsers, e-mail client software, multimedia viewing software, Office, and the Java Virtual Machine. Examples of software that are not Middleware within the meaning of this Final Judgment are disk compression and memory management.'
These notions in the VI.J “Microsoft Middleware” definition are astonishing:
Both of these (VI.J.2 and VI.J last paragrpah) should be removed from the definition.
The term VI.J.4 seems to be there only for the purpose of allowing Microsoft to slice and recombine its software in such a way as to ensure that the user interface component be the one called the "Microsoft Middleware" and not the components that acutally perfrom the traditional Middleware functionality (see Jacksons definition above) of providing APIs to other software. It is very intereseting that Middleware is mostly not about user interfaces but about providing interfaces to other applications, applications that relly on the Middleware as a platform. Most Midleware doesn't have a user interface, if it has one it is incidental.
The term VI.J.4 should be removed.
After these adjustments, Defintion VI.J should just be:
J. “Microsoft Middleware” means software code that
Definition VI.K reads:
'K. “Microsoft Middleware Product” means
The first issue with this definition is, what is the connection between VI.K.2 and the presumably subordinate VI.K.2.a and VI.K.2.b ? The sentence under VI.K.2 seems incomplete, it should end in something like :
"... and that is part of any Windows Operating System Product, and is either:"
Other issues are:
'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.'
Definition VI.K should be replaced by:
'K. “Microsoft Middleware Product” means
Additionally, reasonable definitions of what these mean should be included as separate definitions: "Internet Explorer, Microsoft’s Java Virtual Machine, Windows Media Player, Windows Messenger, Outlook Express and their successors in a Windows Operating System Product"
The word product should be replaced by technology in definition VI.M because not all middleware is made available in a product form, some of it might be made freely available or under conditions or packaging that don't relate directly to it being a product:
'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.'
It shold read:
'M. “Non-Microsoft Middleware” means a non-Microsoft software technology 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.'
The requirement under VI.N.ii that:
'and (ii) of which at least one million copies were distributed in the United States within the previous year.'
Seems excessive, a more reasonable number of one hundred thousand copies is more appropriate because the benefits of the settlement can benefit nascent technologies and not just more established ones.
The definition under VI.O of OEM is self centered, to be an OEM, the OEM has to be a licensee of a Windows Operating System Product. How do new OEMs come to be if Microsoft refused to license its products directly or uses intermediaries not under its ownership control but under agreement control to do actual sublicensing? The definition of an OEM should be independent of whether they at any given point in time they have a direct license from Microsoft (instead of purchasing the product in the channel like smaller OEMs do). The definition of Covered OEM already takes care of them being licensees.
O. “OEM” means an original equipment manufacturer of Personal Computers.
Definition VI.Q reads:
'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.'
The only concern here is if:
television set top boxes, handheld computers, game consoles, telephones, pagers, and personal digital assistants
are constructed from Intel x86 or x86 compatible processors and Microsoft offers a version Windows for them that allows any software designed for Personal Computers to work on those systems, then what those products would be are:
For example today Microsoft offers a fully functional Personal Computer as its game console, the Microsoft Xbox. If Microsoft were to offer Windows XP for that system, it would not only be a game console but also a fully function Personal Computer. Under those circumstances it should not be excluded from the definition.
Defintion VI.R reads:
'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.'
Without actual evidence about the actual size of the MSDN subscription base, it seems safer to rewrite this. Addtionally because of naming issues, the term "beta test version" should be expandded into its meaning:
'R. “Timely Manner” means at the time Microsoft first releases a release version of a Windows Operating System Product through its MSDN developper program solely for the purpose of developper testing and not intended for end user use for reasons other than for testing. If Microsoft plans multiple such test releases, then Timely Manner shall means the release time of a test release that is at least one year away from the product's final availabilty to OEMs for pre-installation or for consumer retail purchase, whichever is earlier.'
Defintion VI.S reads:
'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.'
This definition is purposedly constructed to prevent:
The notion of Top Level Window must be extricated from the settlement and Microsoft should allow invocation of ActiveX based components of the non-Microsoft Middleware under all circumstances, in a manner similar under which today third party software is invoked under a non Top Level Window and displayed within the Internet Explorer window without a problem (for example see how Adobe's Acrobat Reader is displayed under a non-Top Level Window). Microsoft has done already all the technical work in this area, an it is now only putting contractual road blocks to all these natural forms of invocation of non-Microsoft Middleware.
Definition VI.T reads:
'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.''
The main issue throughout this proposed settlement with respect ot Trademarks is that software is what it is irrespective of what it is called. The definitions of Microsoft Middleware and Microsoft Middleware Product where conditioned with them being trademarked (under this definition) as a means to provide Microsoft and escape clause to make the no longer Microsoft Middleware (and Microsoft Middleware Products). That concept should completely go away. If it doesn't then the defintion of Trademarked shold be exactly the legal defintion understood under the law and not this one.
Defitions VI.U reads:
'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.'
The list must also include Windows 95, Windows 98, Windows SE, Windows ME (collectively known as Windows 9x) and Windows NT 4.0 and all their service releases. The current installed base is mostly made out of these products. By purposedly excluding them Microsoft and the Plaintiffs allow Microsoft to continue to prevent non-Microsoft Middleware from fairly competing in the broad installed base and forces competition to only occur under Microsoft's controlled evolution of the market. It does so by not allowing competition from the broad installed base by not affording the benefits of the settlement to that gigantic installed base (i.e. all the versions of Windows 9x).