Interesting People mailing list archives
IP: Microsoft's compelled speech
From: David Farber <farber () cis upenn edu>
Date: Tue, 25 Nov 1997 13:24:05 -0500
Date: Tue, 25 Nov 1997 10:50:19 -0500 From: James Love <love () cptech org> The second part of this note concerns aspects of the licensing agreement that software developers must sign to distribute the latest version of COMCTL32.DLL, and important part of the Windows 95 and NT operating systems. Not only does Microsoft require third party developers to distribute and install Microsoft Internet Explorer on their customers' computers to use this file, but Microsoft requires software companies to issue MS reviewed press releases, place the MSIE logo on a company's home page, deploy MS specific technologies (e.g., Channel webcast optimization via a CDF file, Dynamic HTML, or NetShow content) on a company's Internet product page, and make MSIE and MS Outlook available Explorer and Outlook Express available for use internally under a company's customary information services policies and procedures. Jamie -------------------------------------------------------- Info-Policy-Notes | Available from listproc () cptech org -------------------------------------------------------- INFORMATION POLICY NOTES November 24, 1997* - Discussion of Microsoft Leverage of Windows to market its applications - Special attention to distribution license for Common Control DLL, which is an example of Microsoft licensing practices which require competitors to market MS applications if they use updated Windows components The past few days there have a few articles which talk about the ways that Microsoft is seeking broad integration of Windows (3.1, 95 or NT) operating systems with Microsoft applications as a way of "leveraging" the OS market share for the applications. This was the topic of James Gleick's interesting "Justice Delayed" in the November 23, 1997 New York Times Magazine (not on the Web at this time), my own article in Intellectualcapital.com http://www.intellectualcapital.com/issues/97/1120/icpro.asp (no comma), and the recent Department of Justice reply brief in the Microsoft case. One item referenced in the November 20, 1997 DOJ brief was a December 20, 1996 document sent by Microsoft's Jim Allchin (who now heads Microsoft's personal and business systems group) to Paul Maritz (group vice president for Microsoft's platforms and applications group. The message, which was titled: "concerns for our future," states: 1. Ensuring that we leverage Windows. I don't understand how IE is going to win. The current path is simply to copy everything that Netscape does packaging and product wise. . . . My conclusion is that we must leverage Windows more. Treating IE as just an add-on to Windows which is cross-platform [is] losing our biggest advantage -- Windows marketshare. We should dedicate a cross group team to come up with ways to leverage Windows technically more. . . . . We should think first about an integrated solution -- that is our strength. [Gaspar Conf. Decl. 17, Exh. 14 (December 20, 1996 e-mail from Jim Allchin to Paul Maritz). The DOJ brief is on the Web at: http://www.usdoj.gov/atr/cases3/micros2/1277.htm (no period). Other DOJ documents in the case are available from http://www.usdoj.gov/atr/cases3/micros2/micros0.htm In a November 19, 1997 post to info-policy-notes, I reported Great Plains Software's letter to DOJ, objecting to Microsoft's decision to force third party software companies to distribute Microsoft's Internet Explorer (MSIE), if they distribute the latest version of the "Common Control DLL," (http://www.essential.org/listproc/info-policy-notes/msg00274.html), a file which is part of Windows. Brett Glass, wrote to say: "COMCTL32.DLL is a general-purpose library that's used by virtually every application. One thing this particular article did not point out, though, is the consequences that ripple through from the MSIE license agreement. These are key to understanding the full import of the tying arrangement. . . As MSIE licensees (and all developers must be, since COMCTL32.DLL is fundamental to shipping a Windows app), are literally required to make their Web sites incompatible with Netscape browsers. What's more, they're required to issue press releases saying they've adopted IE, creating the perception of incredible momentum in the press. What's more, if they get on Microsoft's bad side, it pulls the license and they can no longer ship product." At Brett's suggestion, we reviewed Exhibit C of the Microsoft distribution license for MSIE. A copy is attached below. It is a textbook case of Jim Allchin's proposal for leverage. Jamie Love love () cptech org 202.387.8030 http://www.cptech.org EXHIBIT C Marketing Activities Company shall participate in the following marketing related activities: (i) Issue a press release announcing that Company has licensed Internet Explorer, Outlook Express, or NetMeeting within sixty (60) days following execution of this Agreement, or authorize Microsoft to use Company's name in press releases to identify Company as a licensee of Internet Explorer, Outlook Express or NetMeeting. The party preparing the press release shall provide such release to the other party for review at least five (5) days prior to release; (ii) Use and display the Microsoft Internet Explorer logo online logo on the home page for Company's Internet Product along with a hot link to www.microsoft.com/ie on home page of Company's primary web site(s) in accordance with the terms set forth at www.microsoft.com/ie/logo, or any successor thereof; (iii) Use the Microsoft Internet Explorer name and logo depicted in Exhibit A in Company' packaging, advertising an promotional materials. Such use shall be pursuant to the Guidelines in Exhibit A and Microsoft's standard trademark policies as may be provided by Microsoft to Company from time to time; (iv) Make Internet Explorer and Outlook Express available for use internally under Company's customary information services policies and procedures; and (v) Deploy [and promote where appropriate] at least one advanced feature of Internet Explorer 4 (e.g., Channel webcast optimization via a CDF file, Dynamic HTML, or NetShow content) on Company's Internet Product page. * corrected for three typos on Nov 25. ------------------------------------------------------------ INFORMATION POLICY NOTES is a newsletter sponsored by the Consumer Project on Technology (CPT), a project of Ralph Nader's Center for Study of Responsive Law. The LISTPROC services are provide by Essential Information. Archives of Info-Policy-Notes are available from http://www.essential.org/listproc/info-policy-notes/ (no period). CPT's Web page is http://www.cptech.org (no period). CPT can both be reached off the net at P.O. Box 19367, Washington, DC 20036, Voice: 202/387-8030; Fax: 202/234-5176. Subscription requests to listproc () cptech org with the message: subscribe info-policy-notes Jane Doe ************************************************** "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Ben Franklin, ~1784 **************************************************
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