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
> >