Copyright 1999 by Nathan Myers
http://www.cantrip.org/
All Rights Reserved.
Microsoft is widely reported to have failed to present a
convincing case against charges of using their (otherwise-legal)
monopoly position illegally, to stifle competition. Microsoft
apparently agrees, despite its protestations to the contrary, as
they are reported to be involved in settlement talks with the
Department of Justice and the states’ Attorneys General. The news
media are already speculating on what remedies might be
appropriate.
We are starting to see articles (and even petitions) calling for
Microsoft to be forced to “open” the Windows source code. While
superficially appealing, I argue here that this, like the 1985
consent agreement, would be another slap on the wrist for
Microsoft. I believe that, despite what they might argue behind
closed doors, a source-code publication order is really in
Microsoft’s own estimation the best-case outcome of the trial.
|
“freeing the Windows code
would be little help to us in the Free Software community, or to anyone else.” |
Why would opening the Windows source code fail to benefit us?
First, as in the case of Netscape Communicator, a large fraction of
the code is bound under non-disclosure agreements, and would not be
opened under any settlement or court order. Furthermore, the
remaining secret code would be the most _interesting_ fraction:
device drivers, codecs, and patented compression code. It is
primarily the widespread use of incompatible devices that
interferes with easy installation of alternative operating systems,
so freeing the Windows code would be little help to us in the Free
Software community, or to anyone else.
Second, with such a large fraction of the code remaining under
wraps, users would be unable to build their own releases of the
system. This would leave Microsoft in the same monopoly position,
but, having complied with their new consent agreement, immune to
prosecution. At best, the code might help provide guidance to such
projects as WINE, but only if the code were not encumbered in such
a way as to add a new danger of contamination.
Finally, going “open-source” might ultimately benefit Microsoft
as companies which have committed to use of their software would
end up sending them free fixes for their numerous bugs.
What do I suggest instead? Microsoft is able to attack new
markets in part through using, or threatening to use, their huge
war-chest account built up by monopoly control of their existing
markets. Our best-case scenario for the outcome of the trial would
be the simplest: start with a _fine_.
Microsoft is reported to have something like $20 billion dollars
in the bank. If in fact the court determines that this money was
obtained by illegally exploiting their (otherwise-legal) monopoly
position, then the court may simply and legally confiscate it. That
money, placed in grants foundations, could fund or educate quite a
lot of Free Software developers, even after the lawyers took their
cut.
I see no reason to stop with (say) a $20 billion fine. In
addition, since Microsoft still holds a monopoly in their
traditional business areas, operating systems and office
applications, and it would be demonstrated that they cannot be
trusted not to abuse that monopoly, the court should break up the
company into at least three parts: e.g., operating systems, office
applications, and “other”. Each new company’s products would be
allowed to use only publicly-documented properties of published
interfaces of components it uses that are supplied by other
companies.
Since a requirement to publish detailed specifications allows
far too much room for outright fraud — how accurately have they
documented the functions they _meant_ to be public? — the form of
publication should be source code. In other words, they should be
forced to release the source code not because that source code is
intrinsically valuable, or because they don’t (or pretend not to)
want to release it, but because that is the only form in which we
can trust they have actually fulfilled their documentation
obligations connected with the breakup of the company.
Nathan Myers is best known for his work on the
ISO/ANSI C++ Language standard. He has used C++ since 1986, and
GNU/Linux since 1994. His previous publications have appeared in
Dr. Dobb’s Journal and C++ Report. Contact him via his web page,
http://www.cantrip.org/.