🚀 go-pugleaf

[Cross-posted to gnu.misc.discuss because of the RAND licensing terms that
will make this settlement almost cetainly meaningless for free software].

http://news.cnet.com/news/0-1003-201-7758181-0.html

   Microsoft shall not retaliate against an OEM...because it is known to
   Microsoft that the OEM is or is contemplating:

   ...

   2. shipping a Personal Computer that (a) includes both a Windows
   Operating System Product and a non-Microsoft Operating System, or (b)
   will boot with more than one Operating System; or


Plus they have thought about the issue of booting:

   C. Microsoft shall not restrict by agreement any OEM licensee from
   exercising any of the following options or alternatives:

   ...

   4. Offering users the option of launching other Operating Systems from
   the Basic Input/Output System or a non-Microsoft boot-loader or similar
   program that launches prior to the start of the Windows Operating
   System Product.


I'm pleased to see that at least these basic competitive necessities are
included.


No more secret APIs for Microsoft? This appears very weak:

   D. Starting at the earlier of the release of Service Pack 1 for Windows
   XP or 12 months after the submission of this Final Judgment to the
   Court, Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and OEMs,
   for the sole purpose of interoperating with a Windows Operating System
   Product, via the Microsoft Developer Network ("MSDN") or similar
   mechanisms, the APIs and related Documentation that are used by
   Microsoft Middleware to interoperate with a Windows Operating System
   Product. In the case of a new major version of Microsoft Middleware,
   the disclosures required by this Section III.D shall occur no later
   than the last major beta test release of that Microsoft Middleware. In
   the case of a new version of a Windows Operating System Product, the
   obligations imposed by this Section III.D shall occur in a Timely
   Manner.


And this is designed to make sure free software can't get hold of
Microsoft's communications protocols to interoperate with them:

   E. Starting nine months after the submission of this proposed Final
   Judgment to the Court, Microsoft shall make available for use by third
   parties, for the sole purpose of interoperating with a Windows
   Operating System Product, on reasonable and non-discriminatory terms
   (consistent with Section III.I), any Communications Protocol that is,
   on or after the date this Final Judgment is submitted to the Court, (i)
   implemented in a Windows Operating System Product installed on a client
   computer, and (ii) used to interoperate natively (i.e., without the
   addition of software code to the client or server operating system
   products) with Windows 2000 Server or products marketed as its
   successors installed on a server computer.

Note the RAND ("reasonable and non-discriminatory") licensing terms that
Microsoft can use. It's not punishment.


   I. Microsoft shall offer to license to ISVs, IHVs, IAPs, ICPs, and OEMs
   any intellectual property rights owned or licensable by Microsoft that
   are required to exercise any of the options or alternatives expressly
   provided to them under this Final Judgment, provided that

   1. all terms, including royalties or other payment of monetary
   consideration, are reasonable and non-discriminatory;

So again, free software will have no interoperating access to Windows at
all if Microsoft chooses licensing terms that are incompatible with free
software (and of course they will).

And note, to really make sure free software will have no interoperating
access this term has also been included:

   3. an ISV?s, IHV?s, IAP?s, ICP?s, or OEM?s rights may be conditioned on
   its not assigning, transferring or sublicensing its rights under any
   license granted under this provision;


But to make the case even worse for free software two more op-out clauses
are included:

   J. No provision of this Final Judgment shall:

   1. Require Microsoft to document, disclose or license to third parties:
   (a) portions of APIs or Documentation or portions or layers of
   Communications Protocols the disclosure of which would compromise the
   security of anti-piracy, anti-virus, software licensing, digital rights
   management, encryption or authentication systems, including without
   limitation, keys, authorization tokens or enforcement criteria; or (b)
   any API, interface or other information related to any Microsoft
   product if lawfully directed not to do so by a governmental agency of
   competent jurisdiction.

   2. Prevent Microsoft from conditioning any license of any API,
   Documentation or Communications Protocol related to anti-piracy
   systems, anti-virus technologies, license enforcement mechanisms,
   authentication/authorization security, or third party intellectual
   property protection mechanisms of any Microsoft product to any person
   or entity on the requirement that the licensee: (a) has no history of
   software counterfeiting or piracy or willful violation of intellectual
   property rights, (b) has a reasonable business need for the API,
   Documentation or Communications Protocol for a planned or shipping
   product, (c) meets reasonable, objective standards established by
   Microsoft for certifying the authenticity and viability of its
   business, (d) agrees to submit, at its own expense, any computer
   program using such APIs, Documentation or Communication Protocols to
   third-party verification, approved by Microsoft, to test for and ensure
   verification and compliance with Microsoft specifications for use of
   the API or interface, which specifications shall be related to proper
   operation and integrity of the systems and mechanisms identified in
   this paragraph.


Note even authentication systems are mentioned in J.1. above.


Overall this appears to be an incredibly weak settlement. I cannot see
where Microsoft is paying any price for their past conduct (e.g. no fine
is in sight?) Stopping Microsoft from prohibiting dual booting in the
future is just stopping what appears to be an anticompetitive practice
that cannot sustain further antitrust scrunity. The overt moves to make
sure free and open source software will not get any assistance to create
interoperable software with Windows is really disappointing.

I'll be looking forward to seeing other commentators thoughts on this in
the coming days.

Regards,
Adam