Want to meet four men who dared to fight MS -- and won?(Groklaw)

There is a lot to be said for the four men standing up to Microsoft and providing the kind of support the EU Commission needed. And, yes, by all means if you have not already read their interview you need to do so.

Embedded in all of that joy and excitement is an interesting concept.

When you adopt open source or the Gpl in particular, you can not be bought out.

SUN? Took the money and went home. RealNetworks? Took the money and went home. Even some industry groups claiming to represent the best for the industry and consumers just took cash and left. Bought out.

And if you look at the legal scene in the US: AOL (Netscape) took the money and went home. So did Caldera (but Novell got the money). Novell did it in their own name with the networking case and is likely to do so also with the WordPerfect? case since it is no longer owner of WordPerfect?. BeOS, Bristol, Burst, all just take money and leave the industry to the illegal business practices of the monopolist, Microsoft. Microsoft does not win because it is the best of anything other than paying people to leave.

Ah, but along come these four guys. They can not be bought. They can not be bought because the software is not under their control. Or, it is, so to speak. But, not once they leave. So Microsoft could have offered huge sums of money to have them get busy doing other things, etc and not bother to support the enforcement of EU laws. But, they did not.

So now you know why Microsoft hates the GPL so much. You can not buy out the competition.

Microsoft was told it could not buy out Intuit when it tried that. But, using illegal means to drive a competitor off the shelf, forcing them to sue and then just paying money to settle the case is pretty much the same thing. Could Microsoft just buy RealNetworks?. You know they would if they could. But, they can not. So out come the illegal practices if for no other reason but to sidestep laws preventing them from buying the company out directly.

Ah, buy now we have a new day. And Microsoft does not have an answer for it. Illegal methods do not work so well. There is no one to buy out. Or if you do, someone else can just take the code and soldier on.

Now that is not quite true with pursuing a case in court like these four have done. So do not think I am reducing in any way their dedication and work. The truth is they have persevered where the likes of SUN, Novell, AOL and others have just crapped out.

Now kind in mind here that I am not changing my mind about the impact this decision is likely to have on the industry. I still think it does nothing to ensure fair, open and viable competition. As with the Netscape browser and the DOJ case, nothing has changed. Microsoft will screw all consumers with their branded media player eliminating any possible substitution. After all it is the inability of a customer to substitute players that eliminates the competition. And I do not need any idiots claiming that since Microsoft does not actually block other players it is all okay and the marketplace is a fair one. Only those lacking in intelligence suggest such a thing. And some of those idiots are lawyers. By their own words you would think they would be okay if the government forced them to buy one brand of car BEFORE they buy the model of their choice. Pure idiots and liars. They are not okay with illegal bundling. They only lie about it.

Going forward with the EU decision it is yet to be understood whether Microsoft will ever release its information for use in open source or the GPL in particular. My bet is that they will never do that. They will drag and drag and even pay a billion more in fees before they even consider it. RAND terms will be developed specifically to discriminate and eliminate open source, the GPL or anything that does not impose a per seat fee on use. And this is why the requirement to share information just will not work.

Open source products need to have fair, open and viable markets to function just like proprietary products do. The individual customer must have the ability to “substitute” the product. And that means they do not get it. It is not forced upon them. They do not have to pay the R&D. And they do not have to pay per seat costs either. It is the illegal bundling of disparate products that must be addressed. In the case of the OS and networking technology, they must be separated. Otherwise you simply have two or three monopolies keeping each other in power. And that leaves competitors with only one option. And that is to substitute the entire stack of products.

Now I will admit that open source could rise to that challenge. And it is even fair to suggest it has already done so. With Linux, SAMBA and FireFox?, who needs anything from Microsoft? Toss in OpenOffice? if you want to. So the entire platform can compete but individual products can not. And that is because Microsoft's illegal activity has shifted the only possible and viable marketplace into the entire stack area.

Oh sure, FireFox? is doing fine on the Microsoft platform. But, that is only true because Google is funding Mozilla. And you could even suggest that OpenOffice? only exists because of funding from SUN and now IBM and Google. But, to date, OpenOffice? does not afford a revenue model of any significance. I think that will change over time. But, getting through this dry period would be impossible for a proprietary product. Hense WordPerfect? still just an also ran product these days. And that is true despite its loyal customer base that has hung in there.

So just where is this case/decision headed?

Maybe no place. And that despite all the commentary you read about how devastating this decision is for Microsoft. Well, Microsoft did learn it can not buy out those it harms. Not when they use the GPL. Or, perhaps other open source licenses as well. Witness that even since Microsoft paid off AOL that $750 or $850 million to leave the market to the illegal companies, Firefox remains a pain in the side of Microsoft. So buying out AOL did not get much. And, buying out Black and his fake organization did not buy much either. So there is a lesson to be learned there.

But, will Microsoft's illegal practices cease?

Not on your life.

None of them ever have despite claims by the fake representatives of consumers such as the US DOJ. I honestly can not believe their ignorance. It is not their ignorance of the law. They know what that is. In the Microsoft antitrust trial the appellate court clearly said that commingling code was illegal. But, did the people's representatives do anything to secure the enforcement of the law in that case. Absolutely the opposite.

Just this last week there appeared a commentary on ZDNet about how the purposes of the decision in the DOJ had been met. Obviously Microsoft is paying others to say publicly that the settlement imposed on Microsoft should be lifted. Presumably because it has done its job. Well, its job was to invalidate the antitrust laws rather than enforce them. So, yes, its “job” as defined by Microsoft is completed. You might as well terminate it.

I know Google is hanging in there somehow hoping to get what they will need in the marketplace in order to be successful. But, I think they realize that is not going to happen no matter what they do. At least in the current action. They just want to see if they can avoid spending $50 to $100 million in legal fees suing Microsoft for antitrust.

The article that I mentioned above claimed that Google must not have read the DOJ v. Microsoft decision. But, he own article suggests he failed to read the decision. The decision found Microsoft guilty of commingling code in order to preclude the customer from making any decision in the marketplace. Yet, the DOJ ignored the law. And this kind fellow has too. Instead he rambled on about what all Microsoft did not do. Antitrust law is not about what you do not do. It is about what you do do. Microsoft commingled the code among a number of other acts deemed to be in violation of the law. And dreaming up a sharing concept and then frustrating it such that it can not be affective is just another form of what it did to Netscape. But, when the people get dishonest lawyers to represent them, they remain screwed. And to this day everyone is still forced to buy, install, maintain and support Internet Explorer. And that despite the decisions in the DOJ v. Microsoft case.

And there is one more important point to mention on the DOJ case.

A settlement does not make law. Only decisions by the court properly litigated define what the law is. Simply put, the law is that it is illegal to commingle code as Microsoft did. Nothing in the settlement matters one iota. It is NOT the law. Rather it is the resolution of a dispute between two parties. In this case, Microsoft and Microsoft's lawyers, the DOJ. But, even when the two parties represent different interests, a settlement is not the law. The AT&T antitrust settlement? Not the law. The IBM settlement? Not the law. The BSD settlement? Not the law. The Caldera settlement? Not the law. The SUN settlement? Not the law. The Novell v Microsoft settlement? Not the law. On and on and on. Only decisions made by the court that have extended past their time for appeal qualify as the law. They are the law of that case. And they can be (if published) be the law by which other cases can refer to as precedents. Hence, the requirement felt by Microsoft to pay off and settle all those antitrust law suits. It was too late buying out the DOJ so that case became final on many issues. Yes, Microsoft did appeal the commingling issue to the US Supreme Court and the appeal was denied. So that is the law. And, you can bet your last dollar that Google lawyers have read the DOJ decisions and they know what precedents they can use if they feel the need to sue Microsoft. And that my friend is most likely the only reason that Microsoft acts like it is going to respond to the Google issues. I say 'acts like” because you know they will never remove their desktop search software from the OS. It is commingled just like IE was and is. And it will remain that way until a court of law orders them to conform to the law (as established in the earlier Microsoft decision). And this jerk has the guts to suggest that Google has not been reading the Microsoft antitrust decision? I guarantee you they have done so.

There is nothing wrong with getting your job done under a current settlement if you can. I just doubt that will ever occur. And do not be surprised if Microsoft drops any resistance to continuing the settlement just because they know that if it goes away Google is much more likely to file its own antitrust complaint. And, I can tell you that Google must have additional products and services unbundled from the OS if it expects to be successful over the long run. And it has the legal right to see that is the case.

Interestingly enough Symantec and other antivirus companies have similar arguments as far as “services” go. I am not so sure they have as good an argument on antivirus software itself. But, because an OS should be protecting itself, there is a need for the OS to do so. That is not the case with user oriented software such as browsers, media players or even desktop search utilities. Those products that provide a use or service for the user are NOT OS functionality. They never have been. And they never will be. Microsoft only lies about that so that they can screw the customer with another Microsoft product and preclude the possibility of a marketplace developing. They did that with the browser and the media player despite the DOJ and despite the EU Commission.

Oh, how did we get here? Oh, yea, the four amigos. Well they have truly been an inspiration. And it would be helpful to have access to the information needed or interoperation. But, the industry deserves much better. The industry and consumers too need to have a viable, open and fair market in all products. Not just one big fat one.

So how are we going to get there?

Only one way. Require Microsoft to market disparate products separately. That is what the DOJ refused to do because Microsoft did not want to. Microsoft wanted to freely engaged in illegal acts so that the market could be manipulated. That is what the DOJ now calls “defending competition” not “defending competitors”. In other words, it really really wants to represent the antitrust violator and has done so.