decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Microsoft Fools Around with Formats
Tuesday, October 12 2004 @ 09:16 PM EDT

Remember when I wrote about trying to find a GNU/Linux computer on the Dell website, and all I could find were ads for Microsoft XP Professional? Well, somebody else noticed the same issue. The latest Joint Status Report on Microsoft's Compliance with the Final Judgments in U.S. v. Microsoft is out, and Microsoft has agreed to quit forcing vendors to advertise only Microsoft products. If the vendor sells a dual boot computer, for example, it is allowed to recommend Red Hat or Novell or Mandrake, not just Microsoft products, without violating Microsoft's Market Development Agreement (MDA).

Can you believe it took a court to make this happen?

Here's a bit from that section:

"Pursuant to the MDA, Microsoft provides marketing funds — in the form of discounts on the price the OEM pays for each copy of Windows — to OEMs whose print advertisements and websites promote Microsoft's operating systems in a manner specified by Microsoft. One promotional requirement under the MDA is that OEMs place a Microsoft-determined "tagline" on print advertisements and company websites for those computers shipped by the OEM with a Windows operating system. An example of such a tagline is: '[OEM] recommends Windows XP Professional.' There are a number of variants on this tagline for different advertisements, but they all take the general form of '[OEM] recommends Windows XP. . . .' Plaintiffs requested that Microsoft issue a clarification addressing some OEM confusion about the application of this tagline requirement to print advertisements and websites for computers sold with non-Microsoft operating systems. Microsoft has agreed to issue such a clarification so as to eliminate any doubt as to the meaning of these requirements; this clarification will encompass two key points: (1) OEM print advertisements and websites for computers that are sold without any Windows operating system do not need to include the tagline for the OEM to comply fully with the tagline requirement; and (2) OEM advertisements for computers sold with a choice of Windows or a non-Microsoft operating system may include language recommending non-Microsoft operating systems in addition to the Windows XP tagline and still comply with the tagline requirement."

They say that they are monitoring Longhorn "to enable early detection and resolution of any potential areas of concern. Plaintiffs anticipate that these discussions will continue throughout the Longhorn development and testing cycle and will report to the Court on any resulting compliance issues as necessary."

Somebody noticed the little matter of .NET licenses including a prior consent requirement, before publishing any benchmarking comparisons:

"Plaintiffs have learned that Microsoft's contracts for the .NET Framework, a component of the Windows operating system used to build and run Windows-based applications, require prior consent from Microsoft before licensees may publish benchmark testing results for the .NET Framework. Benchmark tests can be used to compare the performance of the .NET Framework to the performance of competing products. A number of companies offer products based on Java technologies that compete against the .NET Framework. For software developers and distributors, the ability to use such metrics to promote competing non-Microsoft products would be quite useful in the marketplace. Plaintiffs informed Microsoft that they are concerned about this restriction on publication of benchmark test results without Microsoft's consent since Section III.F.2 of the Final Judgments prohibits Microsoft from conditioning the grant of 'Consideration' to any software company based on its agreement not to promote software that competes with Microsoft operating system software or Microsoft middleware. Earlier this week, Microsoft expressed a willingness to modify the provision so as to require prior notice to Microsoft of various details relating to the testing, but not Microsoft's prior consent before publishing benchmarking results. Plaintiffs are reviewing Microsoft's response and will make every effort to bring this matter to a conclusion prior to the October 19 status conference before the Court. . . .

"Microsoft is working with the Plaintiffs to address their stated concerns regarding the benchmarking provision in Microsoft's licenses for its .NET Framework software. Microsoft does not object to benchmarking of non-Microsoft software against the .NET Framework. Microsoft's objective in its discussions with Plaintiffs is to ensure that the developer community is provided with benchmarking results that are accurate. The company has proposed a revision to the benchmarking provision of the .NET Framework licensee that states explicitly that benchmarking is permitted, provided the licensee provides testing details to Microsoft so that it can attempt to replicate the results before they are published.

I just thought you cynics out there might like to know that the lawsuit wasn't absolutely for nothing. The Status Report also says that the Technical Committe "has assisted the United States and the New York Group in their review of complaints and continues to directly receive third-party complaints and resolve these complaints in accordance with the procedures set forth in the July 3, 2003 Joint Status Report". So complaints are still being accepted. Of course they need to be related to the Final Judgements, not new matters.

But on compliance with the release of software communications protocols to licensees, the report expresses concern about delay, as it did in the last Status Report, as well as about the technical completeness and accuracy of the documentation. Microsoft chose to offer the documentation, in the Microsoft Communications Protocol Program ('MCPP'), only in a digital rights file format called MHT, which can't be searched or annotated, and that you must have IE to read:

"Plaintiffs have described to Microsoft three general areas of concern surrounding the current state of the documentation. First, Microsoft proposes to offer the revised technical documentation to licensees in a file format that is a rights-protected derivative of HTML. Plaintiffs are concerned that this format significantly limits the practical usability of the documentation. For example, a licensee cannot annotate the documentation or use bookmarks to facilitate collaboration with other authorized users of the documentation and the licensee. This format also does not support sophisticated search techniques that would make the documentation easier to navigate and use. Finally, the documentation in its current form can only be used with Microsoft's own Internet Explorer browser. Microsoft has agreed to meet with the TC to discuss this matter and has promised to provide a report within 60 days on additional measures that it would be willing to take to improve the usability of the documentation."

Ah, Microsoft. Kicking and screaming their way into compliance of a sort. Their justification? It works for them, it's good for long files, and they've published the specs -- it's a proposed standard, heaven help us -- so if some free software-using person wants to write something to be able to read the documentation, they can knock themselves out:

"Microsoft has undertaken very substantial efforts to reformat all of its MCPP protocol documentation in a format known as 'MHT' with Microsoft digital rights management. Microsoft believes this format is a significant improvement over the current Microsoft eBook viewer, and offers the best available combination of navigational and usability features, familiar viewer interface, ability to handle very large document files, and security of the documentation. (MHT is a proposed public standard, and thus support for viewing content in the MHT format can be implemented in any Web browser or other software product. In addition, support for Microsoft digital rights management can be implemented using a free software development kit that Microsoft has made available for this purpose.) Although Microsoft believes MHT with digital rights management is a good choice for document format, the company will carefully assess licensee feedback from the beta testing process and work closely with the Technical Committee to explore possible ways to enable extra features within this format, or in alternative formats if such formats offer more features than .MHT with sufficient security. "

Now you know what the title means by Joint Status Report. Microsoft gets to write some of it, Section III. This last section is from Section III. What they write isn't necessarily accepted by the Plaintiffs, the Justice Department and the Plaintiff states, and vice versa.

What I don't see is any update on the Sun license. In July's Status Report, it said this:

"Since the previous Status Report, Microsoft has signed MCPP licenses with three additional companies listed in Section III below. In addition, in the previous Status Report, Plaintiffs reported on the MCPP Agreement between Sun Microsystems and Microsoft. At the time that agreement was entered into on April 1, 2004, Plaintiffs were informed that Sun's MCPP license would be completed in the near future. To date, the amendments necessary to finalize Sun's MCPP license have not been drafted and it is Plaintiffs' understanding that there has been little movement toward completing the license. Microsoft has reported to Plaintiffs that Sun has not yet paid the pre-paid royalties necessary to begin its participation in the program.

"Plaintiffs remain interested in the status of the Sun agreements for two primary reasons. First, as the Court noted, Sun is a 'major addition' to the group of licensees, particularly because it entered into a general server license, which only one other licensee, SCO Group, has signed. Second, Plaintiffs will review the Sun MCPP Agreement to ensure that the MCPP licenses are being offered on a non-discriminatory basis, as required by the Final Judgments. Plaintiffs will continue to monitor any developments with respect to Sun."

There is not a word in the latest Status Report on this matter, which may just mean that it is still be looked into. This is an interim report. The complete list on the Justice Department's US v. Microsoft page is here.

Antitrust Modernization

Did you know there was such a concept? Neither did I. But Lawrence Rosen sends me this letter [PDF] he sent to the Antitrust Modernization Commission, which is studying whether antitrust law needs to be tweaked and was asking for public input:

********************************

October 5, 2004

BY EMAIL (comments@amc.gov)

Antitrust Modernization Commission
Attn: Public Comments
1001 Pennsylvania Avenue, NW
Suite 800-South
Washington, DC 20004-2503

RE: Comments regarding Commission issues for study
69 Fed. Reg. 43969

Dear Commissioners:

I am currently general counsel and secretary of Open Source Initiative,1 and have served as attorney for many software companies and open source software projects. I am the author of Open Source Licensing: Software Freedom and Intellectual Property Law published by Prentice Hall in 2004, and speak and write around the world on open source issues. For nearly three years I participated on the W3C Patent Policy Working Group and have direct experience with antitrust issues in industry standards organizations.

I submit this issue for your study when you consider ways to modernize the antitrust laws:

Industry standards organizations should be encouraged to establish mandatory disclosure and licensing procedures and to negotiate collectively for licensed intellectual property, so as to guarantee that standards they promulgate for the information technology infrastructure are “open standards.”

An open standard specifies technology that anyone anywhere can freely implement, for free. Its essential goal is ubiquity, and such standards make the information technology infrastructure possible. Consider how open standards underlie the worldwide web and the Internet in software such as browsers and electronic mail systems. Intellectual property (IP) licenses and royalties do not stand in the way of sending and receiving email or viewing web pages. Through the collective action of companies and individuals in standards organizations such as the World Wide Web Consortium (W3C) and the Internet Engineering Task Force (IETF), open standards for the information technology infrastructure are widely implemented without payment of royalties.

Yet intellectual property sometimes stands in the way of open standards. For a time Microsoft as well as open source industry standard browsers were under threat of a patent with a $500+ million price tag, and just a few days ago there was a report of more than $1 billion at risk for a patent infringement lawsuit relating to industry standard Java.

This is no private matter for private resolution. National security and economic stability are at stake when industry standard technology is threatened by intellectual property claims. For example, the unavailability of Microsoft’s patent-pending Sender ID technology means that open source email software can’t help protect our country from spam and electronic fraud.

Collective action is needed to protect open standards from patents and other IP monopolies. This means that industry standards organizations need the freedom to act collectively, and to negotiate collectively, to protect open standards from IP encumbrances.

W3C is the first important standards organization to adopt a patent policy for its members – essentially all the major technology companies in the world – that mandates disclosure of members’ IP relating to W3C standards, imposes a royalty-free licensing regime for that IP, and provides that a collective “Patent Advisory Group” be formed to investigate licensing alternatives.

Other industry standards organizations should be encouraged by the antitrust law to follow suit. Industry standards organizations should be allowed to act collectively in furtherance of open standards for the worldwide information technology infrastructure.

I will welcome an opportunity to comment further on this at an appropriate time convenient to the Commission.

Respectfully submitted,

Lawrence E. Rosen


1 This Comment does not represent the official position of any of the organizations mentioned herein.


  


Microsoft Fools Around with Formats | 182 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here
Authored by: corran__horn on Tuesday, October 12 2004 @ 10:29 PM EDT
Please use a html link
<a href="[website]"> title </a>

[ Reply to This | # ]

Corrections
Authored by: tgf on Tuesday, October 12 2004 @ 10:38 PM EDT
Technical Committe <-- missing an 'e'

Tim

---
Oxymoron of the day:
Microsoft innovation

[ Reply to This | # ]

Microsoft and Benchmarking?
Authored by: stevem on Tuesday, October 12 2004 @ 10:39 PM EDT
"Microsoft's objective in its discussions with Plaintiffs is to ensure that
the developer community is provided with benchmarking results that are
accurate."

Heaven forbid!!! Why on earth would they suppose anyone would try and publish
benchmarks that weren't accurate?
We're not seeing a guilty conscience at work here are we???

/cynicism


- SteveM

[ Reply to This | # ]

OT: Red Hat docs?
Authored by: Anonymous on Tuesday, October 12 2004 @ 10:39 PM EDT
Any sign of the new Red Hat docs mentioned a few stories back?

If anybody has an online copy, link appreciated.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

MHT or mhtml?
Authored by: tgf on Tuesday, October 12 2004 @ 10:43 PM EDT
When I read about this from an OT post the other day, I looked
around for MHT, and found MHTML (ie Mime HTML). Is this just a case
of µsoft still thinking in DOS file-format terms, or is MHT just
something else.

What I didn't find (on Wikipedia?), was any reference to DRM in
MHTML, or whether this is an open a standard as Sender-ID.

Could anyone enlighten me further?

Tim

---
Oxymoron of the day:
Microsoft innovation

[ Reply to This | # ]

Microsoft Fools Around with Formats
Authored by: harrytuttle on Tuesday, October 12 2004 @ 10:43 PM EDT
I like how the report is available in html, pdf or
Wordperfect format. In your face, Bill.

[ Reply to This | # ]

Microsoft Fools Around with Formats
Authored by: k12linux on Tuesday, October 12 2004 @ 10:58 PM EDT
In addition, support for Microsoft digital rights management can be implemented using a free software development kit that Microsoft has made available for this purpose.

Gee, that development kit wouldn't happen to only work in Windows would it? And how long until they sick the DMCA cops on you if you should decide to un-DRM their protocol specs and publish them on a web site or other medium accessable by non-Windows PCs?

---
- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux

[ Reply to This | # ]

Why Are MHT Files A Problem?
Authored by: Weeble on Tuesday, October 12 2004 @ 11:07 PM EDT

Maybe I'm missing something here. The .mht file format in IE is simply an archiving format, not dissimilar to a MIME-formatted HTML email. I'm looking at one right now. In fact, it even has a fake email header, which I suppose would make it suitable to be read in an email client that supports that kind of email. Plus, an .mht file can be re-saved as a "Complete Web Page" (the .htm, graphics files and whatnot saved as separate files instead of the single archive file, which I presume could then be read by any graphical browser; Firefox, for instance). Sometime back, I asked here whether there was a similar format in the FOSS world, and was told that Konqueror(?) has a Web ARchive (.WAR) format that does basically the same thing (perhaps .mht files could be read as .war files with an extension name change and maybe some other tweaking?).

So I'm not sure what the fuss is about. Somebody educate me. Is it that whatever DRM stuff is in the files would prevent them from being readily converted into other useable file formats?

And if there is something badly wrong with using the .mht format, what would be a more suitable form? HTML (with the graphics files and whatnot saved as separate files)? PDF? PS? An older Word format which can be readily opened by OpenOffice? Envoy, perhaps? (Anybody besides me remember Envoy?) XML? RTF?

Educate me. This enquiring mind wants to know!

---
MS Windows doesn't HAVE security holes--it IS a security hole.

[ Reply to This | # ]

Microsoft Fools Around with Formats
Authored by: Anonymous on Tuesday, October 12 2004 @ 11:13 PM EDT
So if I understand this correctly, Microsoft would like
the opportunity to review and reproduce benchmark test
results of products competing with .NET, right?

Why don't we all "publish" benchmark results that show
product X performs better than .NET on such-and-such a
test, preferably on Linux :), and give Microsoft time to
reproduce them (perhaps 5-10 business days?). When the
benchmarks are published that show .NET loses, we add a
tagline that says something like, "As verified by Microsoft
Benchmark Testing Labs". <grin>

[ Reply to This | # ]

Why Be Surprised? But it will not do MS any good...
Authored by: eamacnaghten on Tuesday, October 12 2004 @ 11:26 PM EDT
Why be surprised at this? Every reader here - or at least 99% of us - must be aware that Microsoft stratergy is to lock everyone else out so they can maintain a monopoly. This to them is logical. We can soon expect that everything to come out of Microsoft will only be viewable or useable using Microsoft's products, including web pages and download services....

However, this will do them no good at all. Governments and corporations do not like being reliant on a single entity outside their control regardless how reliable and trustworthy that entity is (I am not saying Microsoft is neccessarily reliable and trustworthy here - so no flames! I am just making a point...). This will, in my opinion, further encourage a lot of lucrative customers to look elsewhere for their software needs. Linux and Open Source is the obvious competitor.

Web Sig: Eddy Currents

[ Reply to This | # ]

Dell advertises GNU/Linux, but they're charging more for it. Why?
Authored by: Anonymous on Tuesday, October 12 2004 @ 11:33 PM EDT
Right now, if you visit the Dell web site, go to Small Business Desktops, and
price the cheapest Dell Precision 370n (which ships with Red Hat Enterprise
Linux WS (V.3) with one year RHN subscription), the "special price" is
$879 ($100 off the "regular price"). If you order the same computer
with Windows XP Professional SP2, the model number changes to "370"
and the "regular price" is the same, but the "special price"
drops to $699. (Both special offers expire October 13.) The Microsoft-oriented
solution is currently $180 cheaper. Now, my question is: why is Dell charging
$180 more for the GNU/Linux solution?

[ Reply to This | # ]

Another Dell scam...
Authored by: lazy on Tuesday, October 12 2004 @ 11:38 PM EDT
I was just pricing Xeon workstations at Dell's small business
department. I priced my extreme dream machine at $6721 inluding Redhat
Enterprise Linux installed (Redhat I think sells this for $179). So I said,
hmmm... I wonder how much I am saving by not getting Windoze pre-insalled. So I
priced out the identically configured machine with Windoze XP. The
price turned out to be $6463. Go figure. Tomorrow I will run
this experiment again just to make sure I didn't make some huge mistake.

Lazy.

---
vote with your wallet, not with your hands.

[ Reply to This | # ]

Microsoft .NET Licenses
Authored by: Anonymous on Tuesday, October 12 2004 @ 11:54 PM EDT
The article mentions "Microsoft's contracts for the .NET Framework". Are these End-User License Agreements (EULA) or are these contracts that are negotiated between Microsoft and other companies?

The reason for my question is that in the state of New York at least, the New York state courts have found that such clauses (prohibiting publishing of benchmarks without prior consent) in EULAs were not legally enforceable.

This was the Networks Associates case. This was covered fairly extensively in the trade press. (CNet, ComputerWorld , and others).

[ Reply to This | # ]

misleading advertizing
Authored by: unsubtle on Wednesday, October 13 2004 @ 12:09 AM EDT
if [OEM]'s advertizing says "[OEM] recommends Windows XP" because their contract with M$ obliges them to do so, then surely that is enough to make the advertizing misleading. recommending a product involves forming a favourable opinion of it (and then passing on that opinion). if an OEM formed their own opinion about XP, it might be favourable. but whatever the OEM's opinion (if any) may be, this "recommendation" is not given because of their opinion, so it's a fake recommendation.

possible things to do:

1. complain about misleading advertizing. in the UK, that would be to the Advertising Standards Authority. is there a US equivalent?

2. can this be tied into the existing US v. M$ compliance case in any way? (i have no idea how.)

do either of those appoaches make sense to anybody else?

[ Reply to This | # ]

Microsoft and *.mht
Authored by: Anonymous on Wednesday, October 13 2004 @ 01:48 AM EDT
"There is an old joke, how do you know if Microsoft is
lying? Their lips move!"

I'm afraid that Microsoft has been less than forth right
about the *.mht file format as implemented by Microsoft.

First, the truth piece of the puzzle, there is a standard
called MIME Encapsulation of Aggregate HTML Documents
(MHTML), which is a format that bundles html pages,
graphics or images and streaming content is packaged
single file. Microsoft is not alone in implementing this
standard. However, that is where the simaliarities end.

Microsoft has con further with Rights-Managed HTML, which
as I quote from Microsoft's own web site "The Rights
Management Add-on for Internet Explorer allows users to
read MIME Encapsulation of Aggregate HTML Documents
(MHTML) content that has been protected with Microsoft®
Windows® Rights Management (RM) technology."

In addition Microsoft Internet Explorer® version 6.0 which
comes bundled with Windows XP (all versions) and Windows
2003 Server (all versions) is the reader product of this
format, however, the writers are any of the products
bundled in various version Microsoft Office 2003.

Microsoft makes available an SDK for a COM implementation
Rights-Managed HTML SDK. The first that is interesting is
that this is a binary only COM object, rather than a .Net
assembly. Of coarse this SDK comes with the standard
(oxymoron (?)) EULA which actually is a DLA (developer
license agreement. Since this Rights Managed *.mht (i.e,
encrypted) format is exclusive to Microsoft, I have yet to
ascertain how it could ever be a standard, unless anything
Microsoft invents is a standard?

The only logical conclusion is for whatever reason
Microsoft has intentionally lied about the nature of their
implementation of *.mht. The first clue was the use of
the file extension "mht". Tranditional Microsoft file
formats are filename, plus a "." and a file extension.
The purpose of the file extension to provide clues as the
application that created it (e.g., *.doc, *.xls, *.ppt,
etc).

All of the published literature searchable at
search.microsoft.com uses the term "MHTML" or "Rights
Managed HTML". It is this later term that indicates the
problem. Because the this format uses the file extension
as the MIME Encapsulation of Aggregate HTML Documents,
which a number of browsers support.

I hate to see Microsoft exhibit this form of deception!

[ Reply to This | # ]

"...dragged kicking and screaming..."
Authored by: inode_buddha on Wednesday, October 13 2004 @ 01:50 AM EDT
I guess it's time for General Failure and Kernel Exception to meet Corporal
Punishment?

Er, ok. I'll be getting my coat now.

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

Whoa, wait a minute
Authored by: inode_buddha on Wednesday, October 13 2004 @ 03:09 AM EDT
"Microsoft's objective in its discussions with Plaintiffs is to ensure that the developer community is provided with benchmarking results that are accurate."

This is the same company that twisted the results all over the map in the "Get the Facts" campaign. In particular, ISTR a TCO "study" claiming that Windows was cheaper - they had installed it on a generic Intel box, and compared it to linux on a mainframe!

---
"When we speak of free software, we are referring to freedom, not price." -- Richard M. Stallman

[ Reply to This | # ]

Microsoft Fools Around with Formats
Authored by: Anonymous on Wednesday, October 13 2004 @ 03:17 AM EDT
Microsoft [stated it] has undertaken very substantial efforts to reformat all of its MCPP protocol documentation in a format known as 'MHT' with Microsoft digital rights management.

There is, in fact, a proposed standard format called MHTML which would be acceptable, as some other posts have pointed out.

However, there is a problem. What exactly does Microsoft mean by "digital rights management" here? There is no mention of digital rights management in the MHTML standard, so obviously Microsoft's intended format is not just MHTML. A program written purely to the MHTML spec here will not be able to make sense of Microsoft's "digital rights management".

Of course, this is a typical Microsoft ploy.

[ Reply to This | # ]

Open Standards quibble
Authored by: RealProgrammer on Wednesday, October 13 2004 @ 05:00 AM EDT

While I personally agree with Larry Rosen's statement as it is, I think the part that says

An open standard specifies technology that anyone anywhere can freely implement, for free.
would be better stated as
An open standard specifies technology that anyone anywhere can freely implement, without payment to anyone else.
(emphasis for comparison)

"For free" implies that you can't charge for doing it.

---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

The real cynics among us might say
Authored by: Anonymous on Wednesday, October 13 2004 @ 05:47 AM EDT
The court has made their order. Now let them enforce it.

[ Reply to This | # ]

Puzzled.
Authored by: Anonymous on Wednesday, October 13 2004 @ 06:00 AM EDT
Just a question about US Law. Is it normal in the US to allow
convicted criminals to draft the terms of their own punishment?
Some of the terms that Microsoft wrote out for the DOJ actually
attempt to enhance Microsoft's monopoly position. I find it
bizarre to the extreme that Microsoft gets to draft the terms of
it's own punishment. Is this a new practice in the US. Are we
going to see murderers, bank robbers, rapists, fraudsters,
copyright infringers etc. drafting the terms of their own
punishment - say 5 years in a luxury 5 star beachside hotel in
Hawaii? Where is the line drawn here?

Also where is the punishment? Looks to me like Microsoft
have been told that they have been very very bad, but no
punitive measures such as heavy fines or suspension of sales
of MS products in any infringement, that would deter repeat
offences have been taken. Believe me, that is the one thing
that would get Microsoft moving fast to stop the infringement.
The Dutch court moved to stop shipping Lindows on something
as trivial as using the Lindows trademark (which is valid in the
US). Why does no similar action get taken on for more serious
repeat criminal offences by Microsoft?

[ Reply to This | # ]

Benchmarking court case or AG removal?
Authored by: Anonymous on Wednesday, October 13 2004 @ 07:26 AM EDT
Wasn't there a court case over benchmarking? Some company had a prohibition on
benchmarking in their EULA, and this was either struck down by a court, or
voluntarily removed after an AG demanded it? I think it had something to do
with free speech?

It may have been related to some hardware site benchmarking, or some tech
magazine that normally tests and reports.

[ Reply to This | # ]

OT - latest Scwartz qoute:
Authored by: N. on Wednesday, October 13 2004 @ 07:46 AM EDT
From http://www.computerworld.com.au/index.php/id;1990936878;fp;16;fpid;0 :

===================
Are you confident you won't get a few phone calls from Darl McBride of the SCO
group saying you can't open source Solaris?

We're very confident we own the intellectual property necessary to pursue
whatever business objective we identify. Very confident. And in an odd way a
lawsuit from SCO would probably do more to establish our street cred in the open
source community.
===================

Methinks he could be in for a rude awakening. Being sued by SCO isn't
necessarily going to get you the support of the Open Source community. Being
sued by SCO for a silly reason, however, will do.

Being sued for attempting to open source SystemV code will not get you the open
source community's support in any lawsuit - not by right-mind law-abiding people
anyway.

---
N.
(Recent [well, since mid-2003] convert to Linux)

[ Reply to This | # ]

*Free* software development kit ?
Authored by: Anonymous on Wednesday, October 13 2004 @ 07:47 AM EDT
> In addition, support for Microsoft digital rights
> management can be implemented using a free software
> development kit that Microsoft has made available for
> this purpose.)

That has to be a flat out lie. I can't imagine MS release
free software. This may be open source (or *evil grin*
shared source, but I seriously doubt it's free software).

[ Reply to This | # ]

Slotting fee primer please
Authored by: Anonymous on Wednesday, October 13 2004 @ 08:21 AM EDT
The phrase "OEM recommends Microsoft Windows XP" undoubtably carries marketing money behind it. But there are many, many ways of Microsoft skinning this cat.

One way that often slips under the radar is slotting fees and payment for shelf space (or a variation on web pages for web sites).

It would be a good idea for Groklaw to provide some background info on slotting fees, payment for shelf space, and other marketing/co-op funding. Slotting fees are well covered in court cases. For a Lexis/Nexxus search, a good article covering slotting fees would be one that appeared in the New York Times in the late 1980's, which covered the issue in relation to Seagram's. Might have been limited to their mixers (get the mixers in, helps promote the alcohol line). Seagram's was one of the first that started the slotting fee practice, at least one of the ones that grabbed the attention of the New York Times.

What are slotting fees? Basically, large retail chains (and smaller chains in other markets) get paid by the manufacturer a fee, sometimes in cash, for placing the product within each store. How would this harm FOSS? If CompUSA (as an example) is being paid $1,000 per retail outlet for placing Microsoft Office XP, plus $1,000 per retail outlet for placing Windows Office 2000 on shelves, CompUSA turns around and demands $1,000 per retail outlet from other office suite providers for the same shelf space. Come out with a new version? Make a trip to the marketing department and renew the slotting fee for the new version. Added a plug in that requires a separate box? New slotting fee. Changed sku? New slotting fee. Business bad this year? Need to pump up the numbers prior to closing the final quarter? Call up the oems, get another slotting fee. Can't pay? You are out on the street, you lose the shelf space.

Normally, it is the retail chains demanding slotting fees from the manufacturers, since it is the retailers that allocate shelf space. But in the case of Microsoft, they would be glad to pay for shelf space, volunteering it, because they know FOSS won't have the deep pockets they do.

How common is this? In supermarkets, Proctor & Gamble was reportedly the only manufacturer not paying slotting fees due to their enormous size. What supermarket chain is going to risk throwing Proctor & Gamble off their shelves if P & G doesn't pay? What if they don't capitulate, don't come back? But iirc, even P&G is paying slotting fees now, at least to the largest chains.

The slotting fee is normally paid as a fee for introducing a new product to a buyer, or as a continuing fee once the product has been introduced. And payment is no guarantee of staying on a retailer's shelf. One individual who invented a single serve pizza product that didn't have to be refrigerated was thrown out from one chain in less than two weeks iirc, due to slow sales. A light bulb distributor in less than two weeks also.

There is also payment for shelf space, which is a separate fee from slotting fees. A well known pretzel company that I'm aware of paid $1,000 per foot, taking 18 inches of shelf space for a total payment of $1,500 per outlet, to place their product on store shelves. In a 30 store chain, that's $45,000, one chain. In a 100 store chain, that's $150,000. In larger chains, do the math. More than one company? Nationwide? You are talking about a very effective way to prevent competition from underfunded competitors.

Another way is marketing money. Know those weekly supermarket circulars you get on weekly specials? Guess who pays to print them? Who pays to get the products priced so low? In the supermarket example, with smaller manufacturers, the supermarket marketing or buying department calls up the manufacturers and informs them that they are going to be featured in next week's flyer, they are going to lower the price to a sale price, they are going to get a larger than normal order of product, and this is how much they are going to contribute to the printing of the flyer. Some of them even quote a price related to the number of flyers to be printed. And then the manufacturer gets an order that is large enough to cover a month's worth of sales but the sale only lasts a week. So the retailer gets to sell the product at regular price for the remaining three weeks, while still paying the much lower sales price from the first week's sale. In Microsoft's case, they would reverse this. Payment for advertising circulars and newspaper ads, payment for any other ads, payment for hanging banners in the retail outlets, payment for posters in the windows facing the street, payments any way they can, to insure that Microsoft is displayed prominently and conspicuously, and other competing products are placed at the back of the store, or even in the store room during the promotion period, and longer term in the very back of the store displays.

Now you are a manager of a retail location. You get a call from the regional manager. A Microsoft rep, he says, was there an hour ago, and saw OpenOffice displayed next to Microsoft Office, on a shelf that is visible from the street. You are also reminded that your location is in the bottom 1/4, 1/3, 1/2 of sales for the quarter to date. You are also reminded that Microsoft is paying $20,000 per quarter in marketing/advertising money to each location, but has in the past pulled advertising money in full, or partially, from poorly performing stores. You are also reminded that Microsoft paid the chain $10,000,000 last year for newspaper advertising (that costs $25,000 per day for full page ads), co-branding, rebates, co-op advertising, and other reasons. You are reminded that without that money, the company would have had a loss last year. Wouldn't have paid bonuses to store managers last year. You are also reminded that a survey revealed that a smaller competitor that opened a new location in the same shopping mall has been giving better customer service at slightly higher prices, and your only weapon against them, due to a higher customer to sales rep ratio, is price. You are also reminded there is a performance review coming up next month. Click, end of phone call. What do you do?

If the settlement has the power to get a handle on "OEM recommends Microsoft Windows" branding/payments, then it must also get a handle on and expose for the world (or at least the court) to see, any and all payments made to retailers, web sites, and OEMs, for payment for shelf space, slotting fees, marketing monies, circular monies, store advertising monies, and any other payments, under any other name, under any other scheme, whether directly through Microsoft, or through a laundering subsidiary, such as a marketing company hired by Microsoft, an advertising agency hired by Microsoft, or any other agreement, partnership, jointly owned subsidiary, or whatever other method Microsoft is using to funnel money to OEMs. Unless this is done, stopping the "OEM recommends Microsoft Windows" branding is simply holding a finger over one hole, while the cash flows out of a thousand other holes.

Slotting fees, marketing money, payment for shelf space, circulars, branding, advertising, whatever it is must be identified, and made a part of the settlement. Because it is all one thing, a monopolist attempting to restrain trade.

[ Reply to This | # ]

Microsoft Fools Around with Formats
Authored by: Anonymous on Wednesday, October 13 2004 @ 08:21 AM EDT
When an advertiser pays for an ad in a magazine or on TV it is clear that it is
a paid for ad, Infomercials have a message that this is 'paid for', ads that
look like content usually have 'advertisement' on the top of the pages. Isn't
it misleading advetising for vendors to have the 'recommends BS' in there ads
with out the paid for by MS?

[ Reply to This | # ]

Thanks PJ
Authored by: Anonymous on Wednesday, October 13 2004 @ 08:36 AM EDT
"I just thought you cynics out there might like to know that the lawsuit
wasn't absolutely for nothing."


....for regarding us all as cynics. The opposite to being cynical is to be
naive, and accept everything at face value. Which condition in the modern
world would you consider the greater failing?

The fact remains that Microsoft were not punished sufficiently for their
wrongdoing.

If holding that view makes me a cynic then so be it:)

[ Reply to This | # ]

  • Thanks PJ - Authored by: Anonymous on Wednesday, October 13 2004 @ 10:24 AM EDT
Microsoft Corp - Malicious Compliance
Authored by: Anonymous on Wednesday, October 13 2004 @ 11:02 AM EDT
Same initials.

They could do PDF or HTML - the Linux Documentation project and the HOWTOs, and
even the GNU TexInfo documentation can be converted to or from nearly anything.
FOSS occasionally lags in user documentation, but when they do produce something
it is very useable.

Next thing you know, they will abandon MHT and print out everything in a courier
font and say you have to pay for shipping for something the size of the book
form of the Thomas Register if you really want it.

Or they will take a page from the DeCSS people and voice record the spec on 78
RPM records.

[ Reply to This | # ]

Microsoft Fools Around with Formats
Authored by: josmith42 on Wednesday, October 13 2004 @ 11:22 AM EDT
"Can you believe it took a court to make this happen?"

Yes, I can. I believe the court will be the only way to get Microsoft to quit any of its anti-competitive practices.

---
Forty-two: the answer to the question of life, the universe, and everything.

[ Reply to This | # ]

Microsoft Fools Around with Formats
Authored by: Anonymous on Wednesday, October 13 2004 @ 02:37 PM EDT
Look...You are not just paying Dell more for just a pre-loaded copy of Red Hat.
You are paying for Dell's support staff, a developement and testing
infrastructure, etc. This is largely in place on the server level; however, it
is still pretty new when it comes to the desktop/notebook market *AND* the Linux
volumes shipped are still pretty low. This means each desktop shipped which
Linux is paying more per Dell employee than with XP right now. It'll change
when/if the number are up. It's the same with most any industry...componant
production up = total cost down.

[ Reply to This | # ]

This is a Boat
Authored by: Anonymous on Wednesday, October 13 2004 @ 04:08 PM EDT
... for trolling.

[ Reply to This | # ]

Investigate HP's Microsoft Contract terms.
Authored by: Anonymous on Wednesday, October 13 2004 @ 04:32 PM EDT
One thing that has always puzzled me is how HP goes out of
it's way to treat Linux drivers for it's products as
taboo. A lot of HP's peripherals are Linux compatible, and
HP's server division actively pushes Linux. However HP
treats Linux compatibility in it's peripherals as taboo. A
couple of years back, I wanted to buy an HP scanner for
use with Linux. I wanted to check out if their current
models would work with Linux. I had heard that most HP
printers and many scanners were Linux compatible. I looked
at their website, and it had Windows and Mac support with
drivers downloadable from the website. Linux was not
mentioned at all on the website despite it's greater
numerical importance than Apple Mac. I called HP, and
asked them about Linux compatibility, and was told that
they don't support Linux. I thought this was the typical
HP airhead they have manning customer support, so I
persisted, and eventually I got through to someone in the
UNIX side of the company who said that they couldn't say
anything about Linux drivers, but gave me an obscure Swiss
HP website for comments on Linux drivers. I visited the
website, and found that HP only listed Linux compatibility
for HP products which were no longer sold.

This is really peculiar - why provide support for drivers
only for products which you no longer sell? Why do your
utmost to hide Linux drivers from the public?

In my mind, there is only one rational explanation - HP
has similar contract which bans the advertising or listing
of Linux or Linux drivers just like the illegal contract
conditions listed above.

Now, if this is the case, HP may be very happy with the
discounts it received from Microsoft in return for
damaging the prospects of alternative operating systems,
but the damaged parties have a right to justice. The
problem is that by using non disclosure agreements,
partners in Microsoft's anti-trust crimes can keep the
crimes secret in order to deny the injured parties
justice. The DOJ should investigate the HP-Microsoft
licensing contract - there is enough suspicion after the
revelations above to warrant this, but in the longer term,
the DOJ should make non-disclosure agreements for
licensing of Microsoft illegal. Since Microsoft is
supposed to charge the same and provide the same terms to
all licensees, an NDA serves no purpose whatsoever, except
to conceal anti-trust crime.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )