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| DATE | 2002-11-04 |
| FROM | Ruben I Safir
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| SUBJECT | Subject: [hangout] MS Ruling and Free Software:E Moglin
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Date: Mon, 4 Nov 2002 19:43:40 -0500
From: Ruben I Safir
To: hangout-at-nylxs.com, fairuse-at-nylxs.com
Subject: [hangout] MS Ruling and Free Software:E Moglin
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Friday's ruling in U.S. v. Microsoft is not good news for free software, according to Columbia Law School Professor Eben Moglen, general counsel to the Free Software Foundation. In an interview with Linux and Main, Moglen reacted to the ruling, pointed out how it can hurt free software -- and what the FSF hopes to be able to do about it -- and even gave a glimpse into how its having cleared the decks for proprietary protocols and "trusted computing" is likely to figure into the next major version of the General Public License.
The questions are in bold face; Moglen's answers are in plain text. Emphasis is added based on Moglen's verbal emphasis in the interview.
What's your view of the ruling?
It's not at all helpful to the free software movement or to the larger community of users and developers. Not helpful because the government's settlement with Microsoft contains serious flaws which the Free Software Foundation pointed out to the Justice Department and to the District Court in our filing under the Tunney Act; Judge [Colleen] Kollar-Kotelly's order does not disturb those aspects of the settlement agreement of which we disapprove. Not helpful because her remedies or opinion and order in the litigating states' cases also make no provision for the restoration of competition in the operating systems market. We are, after all, as a community the competitor to the monopoly.
Judge Kollar-Kotelly makes clear in her opinion that she understands that the United States government argued that Microsoft was illegally maintaining a monopoly in the operating systems market. She doesn't disagree with that. She states in her opinion, however, that for whatever reason, she does not regard free software -- GNU/Linux and all of its companion applications and programs -- as a viable competitor; she repeats statements to that effect from Judge [Thomas Penfield] Jackson's findings of fact, and we agree that those are Judge Jackson's findings of fact, but the world has clarified somewhat since Judge Jackson made those statements. And we think Judge Kollar-Kotelly might have taken account of the changes in the market.
We also think at the Free Software Foundation that there are some disquieting aspects of what Judge Kollar-Kotelly has done in her comments on parts of the settlement agreement with the Justice Department and Microsoft. We are very concerned that the phrasing of the settlement agreement, as we pointed out in our submission to the Justice Department, we're very concerned that the release of API information, which is absolutely crucial to free software developers, has been organized by Microsoft in the settlement so that free software developers cannot profit from it. And this, we fear, is made yet more likely by some of the statements in Judge Kollar-Kotelly's opinion, which affirms that Microsoft may, for example, make anything which is in Microsoft's opinion a security or virus-avoidance or e-commerce-protecting or encryption aspect of software not subject to API release. This will in effect permit Microsoft to conceal or to limit access to unfree terms to all the APIs concerned with e-commerce. We think Judge Kollar-Kotelly and the Justice Department have created an enormous loophole.
It seems that it might be worse than the 1995 consent decree. Is that your view?
I certainly agree with you that at its worst it is worse than the consent decree of 1995. There is nothing in this settlement agreement of the Justice Department which addresses what we believe is the central matter for the restoration of competition in the market, which is to ensure that free software developers may write their own code to implement any protocols and to provide services across any application program interface that Windows applications may make use of. That is, for the purpose of making competition in the O.S. market, the most important thing. Whatever a Windows application program uses in order to secure operating system services across any API or using any communications protocol, it has to be the right of free software developers to write their own code to serve across that interface. If that is done, if for example WINE and X and GNU/Linux can exist and can provide all those services, then there is de facto competition in the O.S. market. Because any application written for the Windows platform may run unmodified on a free software platform. The central item is the API disclosure; that was a central part of the government's case. Judge Jackson found that it was the subject of the illegal maintenance of monopoly by Microsoft, yet we have here an order now supported by Judge Kollar-Kotelly's opinion which does nothing to ensure competition in that domain. There are too many loopholes and too many weaknesses in the settlement agreement.
We made absolutely clear to the Justice Department and to the District Court what needed to be done, in a very precise way, in order to close those loopholes. And we regret very much that that has not happened.
I would like to note that the only modification that Judge Kollar-Kotelly has made in the government's proposed orders and in the settlement agreement is to provide for continuing unilateral supervisory jurisdiction by the District Court. The one thing that Judge Kollar-Kotelly has been interested in in these opinions, beyond the government and Microsoft, is securing her own power to intervene. And I have to take that as a limited positive sign, that it will be possible for us to address the District Court and to show her why in practice this settlement agreement will not have the effect of the pro-competitive gains that the Justice Department told her that she could expect.
In the interim there have been plans put forth by Microsoft for things called "Palladium" and "trusted computing." Couldn't these effectively lock out free software?
We regard "trusted computing" and all the various forms of protected-boot, closed hardware, whether adopted by industry consensus, or by legislative mandate, as in Sen. Hollings's legislation presently called "CBDTPA," as an absolute threat to the existence of free software. We regard Microsoft's interest in those subjects as plainly informed by the opportunities it presents to exclude from the consumer market its only viable competitor. There is no question that "trusted computing" has to be taken seriously as a profound threat to the free software ecology.
We point out to our friends in the hardware business, all the time, the difficulties that this presents, not just to us but to them, and we believe that within limits they have been entirely understanding of our common concerns. Accordingly, with respect to government-mandatedso-called "trusted computing" -- the pro-Disney legislation sponsored by Sen. Hollings, for example -- IBM and Hewlett-Packard have been extremely cooperative with the free software movement, and with the Free Software Foundation in particular, in making our point of view clear and understandable by government.
I am speaking to the annual convention of the Business Software Alliance on the 14th of November in Washington, which in itself is somewhat unusual, obviously, and to be invited to address that gathering in that place on that occasion strikes me as a very significant acknowledgement by BSA of where we are in the software world now. And I will have some remarks there on this particular subject.
I also think, however, that the question you are asking has a specific answer for your readership. Which is that we regard taking measures in the license, in the GPL, to assist free software in resisting "trusted computing" as a very important facet in drafting GPL version 3. It is one of the reasons why I expect that there will be a GPL version 3 draft for public discussion within the next several months. And it is precisely in order to consider our options with respect to "trusted computing" that I am again briefly delaying release of such a draft.
I think that we need to make changes in the fundamental legal infrastructure of free software, subtle but comprehensive, that will help us to face the threat presented by "trusted computing," in part by helping to convince users of free software who are also its redistributors -- and by this I have in mind particularly the hardware manufacturers -- to recognize that they must treat as fundamentally incompatible "trusted computing" and the enormous benefit that they gain by socializing software research and development through the free software movement. We need them to understand that it is not possible to pursue both courses simultaneously, because while the large hardware manufacturers have been extremely helpful to us in furthering our joint interest in preventing government-mandated "trusted computing," they continue to explore in industry fora and in standards organizations how they might go about it. And we need to point out to them that the loss of the enormous benefits of treating software as a public utility in the 21st century -- having development and research done by everybody collectively -- is simply way more important than even the apparent business interests that lead them to explore the idea of computers that are not under the control of their users.
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Re: Interview: Eben Moglen on the Microsoft decision and its ramifications (Score: 1)
by mmarq on Monday, November 04 -at- 16:45:36 EST
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WHAT IN THE HELL DID IT REALLY CHANGED????
MICROSOFT HAVEN'T EVEN MADE A BREAK IN IT'S FEALTY ACTIONS, DURING THE TRIAL!!!!
IT'S ALL ABOUT "MONEY",..., NOT LAW OR JUSTICE,NOT COMPUTER CODE,...,IT'S ABOUT AN ARTIFICIAL FREE ECONOMY WHIT ARTIFICIAL FREE MARKETS WHERE BIG CORPORATIONS ARE ALLOWED TO SQUACH THE COMPETITION WHIT EVERY DIRTY TRICKS IN THE BOOKS, AND A EVEN BIGGER NUMBER THAT AREN'T IN THE BOOKS, JUST BECAUSE THEY PAY FOR THE POLITITIANS(the campaigns and trouble) THAT MAKE LAWS TO PROTECT THEM, AND THEM LIES AND PROPAGANDA TO MAKE AN ILLUSION OF A ARTIFICIAL FREE AND PROSPER WORLD....!!!!
AND THIS ISN'T A USA ONLY DISEASE, IT'S EUROPEAN, AND ASIA AND SOUTH AMERICA,..., AND EVEN WORST,..., PEOPLE DONT REALLY WANT FREE MARKETS, FREE OPPORTUNITYS FOR ALL,..., ALL THEY WANT IS TO MAKE "MONEY" AND SCROU THE OTHERS!!!...
SO NOTHING REALLY NEW UNDER THE SUN!!!....
BUT I BELIVE THE BREATH OF FRESH AIR THAT IS "OPEN SOURCE" NEEDS MORE AND DESERVES MORE... SO I APPEAL TO EVERYBODY TO GIVE BETTER AND MORE, NOW THAT THEY UNDERSTAND CLEARLY THAT THEY HAVE BEEN AND ARE CONTINUING TO BE UNDER HEAVY FIRE OF "MS & FRIENDS".
AND IF ANYONE IN IS FREE RIGTH, BELIVES THAT I'M A STUPID ASSHOLE, HE OR SHE WOULD BE KIND ENOUGH TO EXPLAIN:
A)WHY CAN'T WE HAVE A COMMON "LOOK & FEEL", AT LEAST IN OURS LINUX DESKTOPS??
B)WHY DOES "KDEvsGNOME" WAR SOMETIMES FEELS WORST THAN MICROSOFT??
C)WHY THERE ISN'T A COMMON DOCUMENT FORMAT FOR ALL OFFICE APPLICATIONS IN "OPEN SOURCE" WORLD(giving MS a chance??)???
D)WHY THERE ISN'T A COMMON WAY OF TRANSLATE MS OFFICE DOCUMENTS, AND INSTEAD LOTS OF DUPLICATED EFFORTS(giving MS another chance??)???
(the list could be much bigger)
IF UNDER FIRE IN THIS TOUGH WAR, WE GIVE THE "ENEMY" SO MUCH CHANCES, THE ONLY HOPE THAT "OPEN SOURCE" HAS, IS IF BILL GATES HAS A FEALTY PERSONALITY AND CHOKE AND DIE IN IS LAUGHING OF THE COMPETITION...............................
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Re: Interview: Eben Moglen on the Microsoft decision and its ramifications (Score: 1)
by GuildPortal on Monday, November 04 -at- 17:01:10 EST
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Here's my favorite part:
"that for whatever reason, she does not regard free software -- GNU/Linux and all of its companion applications and programs -- as a viable competitor;"
In response, you have got to be kidding. It's simply not a competitor on the desktop market. Tell you what, you come over to my place, we'll run RedHat install on my server and watch it lock up completely when trying to load the SCSI drivers. Then we'll head to IRC or Newsgroups or Forums (on my Wintel machine, which works) and hear about how we need to change a little something here and there and recompile the kernel.
Did you hear me? Recompile the kernel. Again, you've got to be kidding me.
But anyway, I understand why a person working with or on GNU/Linux variants would want a little more out of the settlement.
If you can't compete, litigate.
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