| Guest editorial: A Victory for the Software Industry |
Matthew Harris, Lineo (July 7, 2001)
Foreword: Matthew Harris' last case as a practicing lawyer was as lead technical litigator in the Caldera antitrust case against Microsoft which ended up with Microsoft making a large payment to Caldera. After reviewing the recent federal appeals court decision in the US vs. Microsoft antitrust case, Harris (who now serves as Lineo's Chief Operating Officer) has decided the decision represents a significant victory for the software industry. Here's why . . .
A Victory for the Software Industry
In the federal appeals court's recent Microsoft decision, although Microsoft is claiming it as a victory, it was, in the end, a victory for the software industry.
One of the biggest risks we face is that Microsoft will continue to leverage its operating system (OS) monopoly to kill competition in other markets -- by "integrating" other programs into the OS, raising the price for the OS and then asserting that the integration is really innovation. Consumers lose in the end AND, despite Microsoft's rhetoric to the contrary, innovation is stifled -- there is little incentive for anyone to build a product that competes with one that is forced on consumers as an "integral part" of the OS.
Before the most recent decision, Microsoft hung its hat on language found in the prior D.C. Circuit opinion interpreting the consent decree. In that decision, the court applied a test that gave Microsoft virtual immunity from scrutiny of any decisions it made to leverage its OS monopoly by integrating other products into the OS.
In the original decision, the court said that if Microsoft succeeded in identifying any plausible reason for "integration" of a product into the OS, the decision to integrate would be immune from judicial scrutiny. In the decision just issued, the court disavowed that test, substituting a test that is both fair and rational.
Under the court's new test, the harm to competition of any integration decision will be balanced against any supposed benefits -- and if the harm outweighs the benefits, then the integration will be considered an illegal tie under the antitrust laws.
What this means in practical terms is pretty straightforward. Under the old test, the fact that Microsoft could point to a single install program used to install the OS plus whatever other programs it decided to include (was Microsoft Office far off?) would have been enough to defeat a claim of illegal tying -- which meant Microsoft was free to tie any programs where it faced competition into the OS.
Now, if the integration doesn't produce real, tangible benefits, it will be struck down. This is, under any measure, a victory for all of the companies out there that compete in the software market.
GPL a cancer?
As for Microsoft's recent comments about the GPL being a cancer, I can't help but be reminded of the tobacco companies in the 50s and early 60s claiming that cigarettes were good for your health ("No wonder so many doctors now smoke and recommend King Size Viceroys").
Microsoft's licensing scheme -- the tobacco in this case -- is both addictive and, in the end, extraordinarily limiting (think emphysema in a wheelchair). Under the standard Microsoft licensing scheme, you can't fix bugs (and there are plenty to fix), you can't make enhancements and you can't alter the OS to make your device perform better.
With GPL software you can do all of those things -- you're free to fix bugs, you are free to make enhancements and you can alter the OS to make your device outperform your competitor's.
Maybe that sort of freedom is why Microsoft is taking the approach of yesterday's tobacco companies.
Or maybe it's just plain fear of real competition.
Author's bio: Matthew Harris is Lineo's Chief Operating Officer, a role in which he has served since January 2001. Prior to that, he ran Lineo's acquisitions group from November 1999 through December 2000. His background includes five plus years of software engineering experience, a J.D. from the University of Michigan (magna cum laude), a year's experience as a judicial clerk for the Federal Court of Appeals (Ninth Circuit), and seven plus years experience as a litigator for Heller Ehrman and Summit Law Group (a nationally recognized technology law firm formed by Harris and several others). His last case as a practicing lawyer was as lead technical litigator in the Caldera antitrust case against Microsoft.
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