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IP: All Pros and No Cons? It's a Con...
From: Dave Farber <farber () cis upenn edu>
Date: Mon, 15 Nov 1999 19:48:04 -0500
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ JEAN-LOUIS GASSÉE COLUMN: All Pros and No Cons? It's a Con... ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ When an idea, a proposition, a cause is presented to me in terms that leave me no alternative but to be for it, because it's all pros and no cons, then I know I'm being conned. How can I be against freedom? How can I be against innovation? How can I be against freedom to innovate? So, when I hear Microsoft's carefully orchestrated refrain -- all we ask is the freedom to innovate, we'll never renounce our freedom to innovate -- being sung by top executives and paid consultants, I wonder. Do they really believe this? Or is it a calculated bet on what our emotional response to an appeal to higher principles will be? Last Friday, November 5th, Judge Jackson gave his decoding of Microsoft's refrain. His finding of facts concludes that Microsoft is a monopoly. To quote his concluding paragraph: ... Microsoft has demonstrated that it will use its prodigious market power and immense profits to harm any firm that insists on pursuing initiatives that could intensify competition against one of Microsoft's core products. Microsoft's past success in hurting such companies and stifling innovation deters investment in technologies and businesses that exhibit the potential to threaten Microsoft. The ultimate result is that some innovations that would truly benefit consumers never occur for the sole reason that they do not coincide with Microsoft's self-interest. The entire document is at <http://usvms.gpo.gov/findfact.htm>. It's long (412 paragraphs), but worth reading. It's written in plain English and takes pains to establish definitions for products and markets in order to create a structure for the findings. The net effect of the finding is troubling. Even for someone as ambivalent (as in having truly mixed feelings) as yours truly towards Microsoft, my emotions range from surprise to sadness, laced with the expected irritation. Surprise, because I didn't expect the breadth and depth of abuse of power discussed by Judge Jackson's. From large companies such as IBM or Intel, to ISVs, service providers, and tiny start-ups such as ours, no one seems to escape Microsoft's vigilance. "Most harmful of all is the message that Microsoft's actions have conveyed to every enterprise with the potential to innovate in the computer industry", concludes the Judge. My sadness at the language and conclusions of the finding comes from looking at the impenetrable wall of paranoia and misunderstanding. I'm reminded of a six-hour conversation I had with Bill Gates at a PC Forum conference early in 1988. He complained repeatedly that Apple didn't trust him, and nothing I said could help him see why his actions and words created fear and distrust. A decade later, I've personally seen grown men fear for their company and themselves at the thought of incurring Bill's wrath and Microsoft's retaliation if they didn't "behave." DOJ officials spoke bitterly about PC makers' unwillingness to come forward to testify about Microsoft's business practices. Perhaps, but they would have done so at great potential cost. I'm in no position to blame them; I declined to testify because it might have interfered with other projects that were then pending at our company and also because testifying would have cost us hundreds of thousand of dollars in legal fees. We couldn't take those risks. Still on the topic of the wall of misunderstanding, there is Microsoft's "what's mine is mine, what's yours is negotiable" attitude. Bill Neukom, the company's chief legal eagle, takes the position that "It's our song" when asked about the restrictions placed on Windows licensees. It's our song and we're free to dictate the way it'll be played on PCs. This is a strange metaphor. If I pay the royalties, I'm free to sing "Let it Be" in any key I want, preceded and followed by whatever act I fancy. Returning to Microsoft's licensing, they used it as a club to prevent potentially errant PC makers from making BeOS visible to their customers. It "works" like this: You can use Microsoft's boot manager to load any number of OSes, as long as they're made by Microsoft. If you (the PC OEM, Windows licensee) use a non-Microsoft boot loader, you cannot use it to load Windows. If you do, you're in violation of the license and you could lose it -- and your business. That's how Microsoft prevented Hitachi from visibly offering Windows and BeOS at boot time. BeOS was loaded on the hard disk, but the customer didn't see the choice at boot time. You'd have to read complicated instructions to set up a dual-boot situation yourself. A neat legal trick that effectively prevents PC OEMs from offering a genuine dual-boot situation featuring both Windows and BeOS. In that context, when I'm asked what Judge Jackson's ruling changes for us, I have to say that in the short-term, materially, not much. Psychologically, however, it's different. The ruling could open minds and, perhaps, doors. By shedding light on Microsoft's practices, the finding of fact might limit the company's ability to leverage its dominance of the PC market into the emerging Web appliance sector. As for specific remedies, they constitute a complicated, controversial topic. Fortunately, I found one well-written survey of this issue in this week's Time magazine (dated November 15th), shorter than Judge Jackson's document but balanced and complete nonetheless. ************************************************************ BeOS Genki B7 and BeMail "The mind of a Frenchman which is unfortunately trapped inside the body of a Frenchman." (John C. Dvorak ca. 1986) Jean-Louis Gassee Be, Inc. 800 El Camino Real, Menlo Park CA 94025 Voice: 650-462-4101 Fax: 650-462-4129 jlg () be com, http://www.be.com
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- IP: All Pros and No Cons? It's a Con... Dave Farber (Nov 15)