IP: All Pros and No Cons? It's a Con...

[Dave Farber <farber () cis upenn edu>]

> > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> > 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