Microsoft Settlement

[Jim Herrmann]

Here is the comment I sent to the Department of Justice regarding the 
Microsoft settlement.  I would encourage all of you to send in your comments 
if you haven't already.  Time is running out.

Peace,
Jim

----------  Forwarded Message  ----------

Subject: Microsoft Settlement
From: Jim Herrmann <Jim at ItDepends.com>
To: microsoft.atr at usdoj.gov

To whom it may concern,

First some of my background.  I have been a computer professional for 15
years, specializing in data base administration.  My professional career has
been mostly with mainframe data bases, but I have done extensive work from my
home with personal computers.  I maintain several web sites for various
volunteer organizations to which I belong.

I believe the Microsoft Settlement has been a capitulation by the current
administration and the Department of Justice to the big money donations of
the Microsoft lobbying and campaign contributions.  The US won this case!
Why has the justice department settled for this woefully inadequate solution
to Microsoft's conviction as a monopolist?  This is the penalty phase of this
case, and yet there appears to be no penalty for Microsoft, and in fact if
implemented as written, could actually increase Microsoft's Monopoly.

For true justice to be served, the courts must decide the punishment and not
the politically (and monitarily) motivated DOJ.  For this reason, the
settlement as currently written must be REJECTED!

I would like to point out several flaws in the settlement and recommend some
alternatives that would seem to make more sense.  I refer to the settlement
found at http://www.usdoj.gov/atr/cases/f9400/9495.htm

III.A Microsoft shall not retaliate against an OEM...

Not only should Microsoft not be able to punish the OEM, but OEM pricing
should be disallowed for Microsoft.  The OEM vendors should be required to
pay full retail price for the operating system and office products, and pass
this on to the consumer.  In other words, strike paragraphs III.B.2 and
III.B.3 from the settlement.  Furthermore, the OEM should be required to list
this cost as part of total cost of the machine, and offer all machines they
sell with either alternative operating systems, or no operating system at all
installed.  This would provide clear disclosure to consumers of the
"Microsoft tax" they are paying with each new computer system.  Allowing
users to remove items from a purchased machine is inadequate, as they have
already payed the "tax" and Microsoft goes unpunished.

III.D ...Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and OEMs, ...the
APIs and related Documentation...

While this is a step in the right direction, Microsoft should be compelled to
make public, not simply to certain companies but to the public, all operating
system APIs, all communication APIs, and every single file format, current
and future, created or used by any of their products.  The interfaces and
file formats should not be allowed to be considered "intellectual property"
that would allow Microsoft to restrict access by imposing "royalties or other
payment of monetary consideration" simply to interface with their products.
This will promote true competition by allowing other companies and the open
source community to write programs that can be fully compatible with, and
have equivalent functionality to the Microsoft monopoly products.

II.J - No provision of this Final Judgment shall:
   1. Require Microsoft to document, disclose or license to third parties...
   2. Prevent Microsoft from conditioning any license...

This paragraph reads like a major legal loophole for Microsoft that will
allow them to get away with keeping large parts of the interface to their
systems a secret by saying that the disclosure would " compromise the
security" of that system.  The APIs and file formats I mentioned above should
be excluded from this paragraph.

Section V. Termination
   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.

So if I have interpreted this paragraph correctly, if Microsoft fails to
comply with this settlement in the first five years, their punishment is to
spend two more years not complying!?  How is this an incentive for Microsoft
to comply with the settlement?  This section completely removes what few
teeth this settlement ever had.  This section should be completely rewritten
such that if Microsoft fails to comply with the settlement, any and all
intellectual property not in compliance will be forfeited to the public
domain.  That would be an incentive for compliance!

In summary, the Microsoft punishment for being a convicted monopolist should
include the opening and documenting of all Application Programming Interfaces
for their products, the documented specification of all file formats for
documents created by their products should be public domain, and the complete
prohibition of the discounts and "bundling" Microsoft currently engages in
with hardware vendors.  Additionally, the legal loopholes should be removed,
and the penalty for non-compliance should be severe.

A settlement that truly encourages competition is very much in the national
interest and national security.  A study released a year ago by the highly
respected Center for Strategic and International Studies, pointed out that
the use of Microsoft software actually poses a national security risk.  We
can not allow any one company to maintain a strangle hold on something as
important to this nation as the information technology infrastructure of this
country.  It is very important for the future of this nation that a careful
and deliberate penalty that restores true competition to the software
marketplace be implemented.

Thanks you for your time,
Jim Herrmann
Kansas City, Kansas

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