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Want to meet four men who dared to fight MS -- and won?
Thursday, September 20 2007 @ 02:09 AM EDT

Right after the Court of First Instance announced its verdict Monday upholding the EU Commission's finding that Microsoft abused its monopoly, our own Sean Daly did an interview with the following: Georg Greve of FSFE, Jeremy Allison and Volker Lendecke of Samba, and Carlo Piana, their lawyer of record in the case. It's a delight. Here's the audio [Ogg and MP3], and we have a transcript too, thanks to the tireless Ciaran O'Riordan, who did three-quarters of it, and Sean, who did the rest.

This is living history. I wanted you and your children and your grandchildren to know some of those they can thank, because when almost all the vendors were signing peace pacts with Microsoft, taking settlement money and slinking away from the case, they stayed to fight to the end. Their role was essentially to speak for FOSS and to make sure the court and the EU Commission understood the technology and the needs of Linux and Samba and all those trying to compete with Microsoft from the Free Software/Open Source community. Unbelievably, they won.

I think you will enjoy hearing Allison describe the courtroom, and his take on what lawyers do, viewing it from a programmer's perspective. Here's a YouTube video for you to see what the robes look like that the lawyers there wear that Jeremy talks about. They seem to take off the wigs before they speak to the media, but here's an example of one and you get a brief look at one in the video at the very beginning. Here's another look at the robes, and the video includes a clip of Microsoft attorney Brad Smith using Novell and Sun for PR purposes.

Sometimes folks try to characterize, or mischaracterize, the FOSS community. If you want to know what that community is like, it's like this, this interview, these four men who dared to try the impossible, with weapons of intellect and skill and integrity rather than money, men who couldn't be bought, who never gave up, and who happily lived to tell us the story with humor and pleasantness. Ladies and gentlemen, please may I have Sean introduce you to them now?

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

Sean Daly: Sean Daly here, reporting for Groklaw. I'm here in Luxembourg, just across the street from the European Court of Justice, the Court of First Instance, and I'm seated with four people whose point of view could be interesting to you. Perhaps each of you could introduce yourselves and talk a little bit about what you've been doing on this case.

Volker Lendecke: My name is Volker Lendecke. I'm a member of the Samba team. I'm based in Germany with a company called SerNet doing Samba business, and I've been at several cases here for hearings, presenting our point of view -- supporting the Commission.

Georg Greve: My name is Georg Greve. I'm President of the Free Software Foundation Europe and my job was more or less to help keep things together, make sure the word gets out, do a bit of the coordination and be as supportive as I can to the brilliant team that's been working on this case.

Carlo Piana: My name is Carlo Piana, I'm the lawyer on record for these guys. So I'm basically doing the legal stuff.

Jeremy Allison: And I'm Jeremy Allison. Carlo's being too modest. He's the one who's actually wrote most of the briefs that went in. So he bears a direct responsibility for this result. I'm co-author of Samba. I've been working on this case along with Volker since the beginning. I took a two year hiatus while I was working for Novell but I'm now back on the case, and I work for Google. And the missing person in the room, who really should be here but can't be with us today, is Andrew Tridgell, from Australia, who is the original creator of Samba. He did a fantastic job in the previous hearing, along with Carlo and Georg. Unfortunately, as he lives in Australia, he can't be with us here today -- but he's with us in spirit.

Georg Greve: And sorely missed.

Jeremy Allison: Yes, truly missed.

Sean Daly: Well I'm sure we're thinking of him because I remember the first time that I interviewed Georg was here in Luxembourg during the previous week of hearings and Georg had mentioned at that time how effective Tridge's testimony was during the hearings.

Georg Greve: Tridge is one of the few people in the world who really do understand the technology better than anybody - and can communicate that knowledge. He is a marvelous teacher and communicator, and he was the needle that made the blue bubble theory burst.

Volker Lendecke: He's also able to actually understand legal issues.

Jeremy Allison: Yes.

Volker Lendecke: ...and read through legal text and understand the consequences. This is the combination -- a unique combination.

Carlo Piana: And I was impressed by moral integrity, which is a rare merchandise.

Sean Daly: Now, tell me a little bit more about the "blue bubble" because I wasn't present at the hearings, but in the hallway, coming out of the hearings, I kept hearing about this blue bubble bursting. What's going on here?

Georg Greve: Well, the blue bubble was a theory that Microsoft invented in order to justify that it had kept parts of the protocol secret. They said that there's a difference between the internal protocols and the external protocols, if you want to describe them like that. They said that certain protocols that are so secret that they are in this blue bubble, because they had visualized this with a blue bubble, that this could never be shared without actually sharing source code, without sharing how the program exactly works. These protocols were so special that somehow, magically, you had to have the same source code to actually make that work. That was the blue bubble theory. So they said things like, "HTML is outside the blue bubble, but the things you want us to disclose, that is inside the blue bubble."

Jeremy Allison: In one of the hearings the bubble was actually green, I think. (laughter)

Georg Greve: They had many bubbles, but they redefined them too. The bubble, at some point I think, was also between the... they made a bubble distinction between the servers and the client protocols, so they had different bubbles throughout the case.

Carlo Piana: Basically the bubble shrunk because initially, everything was inside the blue bubble, and then when this case was smashed down by Jeremy, by Volker, and by Tridgell, they tried to salvage a part of it -- to salvage a theory -- they said "Ok, you're right on this part, but on this part we're still right".

Jeremy Allison: So it was a deflating balloon and then Tridge actually popped it entirely.

Georg Greve: Tridge popped the blue bubble extremely effectively.

Carlo Piana: It was a very very late submission of Microsoft. Actually, at the hearing we hadn't heard of it before it was presented at the hearing, and Tridgell was dramatically effective in disrupting it and saying this is rubbish.

Sean Daly: I remember, Georg I think you had said, he held up a little prototype of a network-aware disk drive or something?

Carlo Piana: Well, basically, one of the questions the court asked is: For forcing Microsoft to release part of their communication protocols, one of the requirements is to show that a new product has been...

Volker Lendecke: ...would be possible.

Jeremy Allison: ...could be created. What new markets would be created.

Carlo Piana: Exactly, and Tridgell showed this $100 piece of hardware which could be, with Samba 4, an active domain controller for $100. It would be a terriblely good achievement for technology. And that was the reason why.

Jeremy Allison: Yeah, you ended up... they were interesting, the hearings. What would happen is that you would end up having to think on your feet in the court room, which is kind of interesting. It's a different challenge from programming. You basically have to watch and understand the presentation from the other side, and you have to be able to adapt your argument when it's your turn to stand up and rebut it. So it's a very interesting... it's more like a debating technique. It's a lot of fun, actually.

Georg Greve: I have to say that the Samba team members have been incredibly good at this. Jeremy deserves credit for the interim measures case, the question whether or not Microsoft should get more time to implement these things and both Jeremy and Tridge are very good at thinking on their feet, I have to say.

Sean Daly: Now, Carlo, you've had about one hour to read through all 258 pages, so I know you know the entire -- I'm joking. What is your first reaction to the ruling? Do you think it will really stop Microsoft from what they've been doing to the market?

Carlo Piana: Well, it's still very early to assess that. I haven't had much time to read through it, but I had concentrated on a couple of points, and I must say that the decision is very, very direct and it speaks loudly against Microsoft's case, very much. This doesn't mean that Microsoft is now forced to comply, because, the decision is one thing, to actually receive the information is another thing, but I think that the legal points that the decision has made are very good for the follow-up, which is more important, actually, than what we have done. So, we have achieved the first victory, the future will bring hard work.

Georg Greve: Actually I think we've won the second round now. The first round was "interim measures".

Jeremy Allison: This is true, yeah, yes.

Carlo Piana: I easily forget victories and I like very much to focus on what's ahead, which is a lot of work.

Sean Daly: Now, a phrase that I've read in the news is that appeals are possible above the Court of First Instance to the European Court of Justice but only on points of law and not in the facts of the case. Can you explain that for a minute?

Carlo Piana: Yeah, already this is an appeal against the Commission's decision, so the extent to which the court could dig into the fact-finding of the Commission is relatively narrow. Now, the appeals on this decision are going to be strictly on the point of law, so, if the court has cited incorrectly the case law, or has done something manifestly wrong, or stuff like this, so the scope of the appeal is very narrow now. So I don't think they will have much leverage on what's going on, and I don't think Microsoft will count very much on the Court of Justice. They will try to squeeze out... there are ways they can squeeze out of the decision. For instance, they are still able to claim that their quote-unquote "intellectual property rights" must be take into consideration when, for instance, handing out information to Samba because they say "No, we cannot do it because we will give away our secret and our secret is intellectual property and so, sorry, we cannot". This one way, I anticipate, they will work very hard.

Sean Daly: When they say "intellectual property", very often it's not clear at all if they're talking about copyrights or patents or what.

Volker Lendecke: And this is deliberate.

Jeremy Allison: Well, yeah. They have a theory that, which they tried floating in previous arguments, that basically specifying the protocols was the same as giving away the source code. So they were actually trying to establish that specifying the protocol would be a copyright violation for anyone else to implement it, which is... which didn't fly, because, I think that's -- even not being a lawyer, I think that's just silly.

Volker Lendecke: One key word for them in the proceedings was the word "clone".

Jeremy Allison: Oh, "clone projects", yeah.

Volker Lendecke: And this is exactly what we do not want to do. We do not want to clone their products. We want to implement a separate implementation of their protocols.

Jeremy Allison: So the very interesting thing about the term "clone projects" is that if you look at the agreement that Microsoft had done with companies like Novell, and probably Xandros and Linspire -- I've only seen the Novell agreement, I haven't seen the Xandros or Linspire ones, the Novell ones are public by the way -- you will find that they specifically exclude what Microsoft call in their legal documents "clone products", which I think they include Samba among. So yeah, there's this whole theory that they're trying to set up that Samba is a clone of Windows and therefore is not available for protection. The interesting thing about the licensing is that I think what Microsoft will try and do... I believe this might have been what some of the discussions with the Commission have already been about is that they're trying to say "look, we have a licensing programme already that we implemented in the US for the Department of Justice case" and that's the MCPP, Microsoft Communications Protocol Program licensing program, and what they were trying to do is to say "Well, why don't we just extend that to cover the server-to-server stuff and then we'll adopt that in the EU and let's settle the case. The problem with the MCPP is that it's an abject failure in that if you look at the companies that are licensed under that program, and the license terms are explicitly designed to exclude free software, so they're designed so there's a per-royalty basis, there's a time limit on the implementation's validity - I think it's about five years - there's royalties, there's all sorts of....

Volker Lendecke: There's per-seat licenses.

Jeremy Allison: Yeah, there's per-seat licenses, thanks Volker. There's all sorts of methods to make this unusable in a free software implementation.

Georg Greve: Which is the same trick they're trying permanently. I mean, ultimately, the good part about... the reason why I think that is no longer a feasible option, even to suggest, is the fact that we have by now the conclusion that the remedies in the US were entirely ineffective. Just recently, someone investigated this and found out that the remedies had no effect whatsoever; therefore I think we can safely say that those licensing terms don't help at all. But they've tried it also, by modifying those kind of concepts in the same way, because when you think about it, they should have published those protocols long ago. After the interim measures case, ultimately, they were obliged to publish, but they didn't. They always tried to come up with new ways to delay, to obfuscate, and to make it legally impossible to implement. They realize that Samba is the only competitor left. So, in a way what they're now trying to do is to say "Oh no, we will give our permission to competitors, but only those who don't actually compete with us". (laughter)

Jeremy Allison: So the interesting thing... Brad Smith gave a statement just after the judgement was announced, where he talked about how the industry had changed and Microsoft was doing deals with Sun. Sun had now become a Windows OEM. They had the Novell deal, et cetera. What he didn't say was that both Sun and Novell, their workgroup server implementation is Samba (laughter) which is being explicitly excluded from the agreements that they've done with Novell. (laughter) And IBM's workgroup server implementation is Samba, and Apple's workgroup server implementation is Samba, and... y'know. You go into Fry's Electronics in the US and any sub-$5,000 NAS box you will find in the place is Samba. So essentially, anyone who actually really competes with them has been excluded from these agreements.

Sean Daly: So, if I can ask a silly question, Microsoft usually gets their way by showing up with their suitcase full of cash and making a deal. I mean, they offered how many millions of dollars to RealNetworks to leave the case. Haven't they ever talked to you?

Jeremy Allison: They obviously didn't offer us enough. (laughter) No, sorry. (laughter) The issue is, you see, the thing you've got to realize about free software or Samba is that we don't own it. I mean, Volker and I don't...

Volker Lendecke: Even if they bought us out, the software would be out there. I mean, we have copyright on it, and we protect our copyright, but anybody could take it, build upon it and just extend it.

Jeremy Allison: And the copyright in Samba is spread across many, many individuals, all of whom contributed under the GNU GPL "v2 or later" now "v3 or later" licenses. I mean, you can't buy that. There's nothing to sell. There's no point of agreement for which to say "here are the rights to Samba, we'll go away". We're in the, some would say unique, some would say certainly unenviable position of not being able to sell out. (laughter) We can't be bought. (laughter)

Georg Greve: Plus, I mean, on an organizational level, yes, they did try to buy everyone out of the case that they could. They spent...

Volker Lendecke: And they were pretty successful.

Georg Greve: They spent remarkable money on this, I mean more than...

Jeremy Allison: Billions.

Georg Greve: 3.6 billion, I think, is the final count at some point. For Sun, for Novell, for Real, for the CCIA. I mean, they were all bought out of the case.

Jeremy Allison: A billion here, a billion there, soon you're talking about real money.

Carlo Piana: And much of the evidence was taken out of the case because RealNetworks, which was one of the initial complainants, withdrew. So their submission, the submission we relied upon all along the case, was withdrawn just before the case came to an end. So, the case was lame at some point, just because one of the parties was bought out.

Georg Greve: It did get a little lonely for us, sometimes, a little. (laughter)

Jeremy Allison: It did, yes.

Georg Greve: ...in the middle, I have to say. We were feeling a little bit left alone, but it does speak for their sense of realism that they didn't actually try to buy us out, because it doesn't work.

Jeremy Allison: Because we wouldn't sell, yes.

Volker Lendecke: Yeah.

Sean Daly: I know that, Jeremy, the time at Novell was a difficult time for you and that you made a choice which I think is very well respected throughout the community. Can you tell us a bit about that?

Jeremy Allison: Well, so, the agreement that Novell did with Microsoft to pull out of the case, actually that wasn't... I was at Novell after Novell agreed to pull out of the case, and essentially I was OK with that. I wasn't happy about it, I understood why it was done financially, and others were continuing in the case. But the agreement about essentially admitting that Linux... the admission that was made that Microsoft then trumpeted that Linux was violating patents, that was a little too much for me, so that was what ended up making me leave. I've already spoken about that really. Yeah, that was kind of an orthogonal position to the case, but I think it shows that Microsoft's adaptability, so their new strategy, it appears to be, is to say "Ok, we may lose this case, we may have to give out the interoperability information, but did we happen to mention that it's all covered by these patents?" (laughter) Which we're not going to tell you what they are, by the way.

Volker Lendecke: Which would be very disastrous for them in Germany. I mean, all these "Linux violates two hundred and whatever patents", you would never see this on Microsoft.de because, as I understand German patent law is, once you make this statement, you have to put -- you have to say what the patents actually are. So you would never see this statement from a German Microsoft representative.

Georg Greve: Yeah, although my favorite patent involved in the whole damn thing was when they said they had all this documentation about how all this worked, the interoperability information, but these were like, I don't know, what was it, sixty four thousand pages or something? Like, an insane amount of pages apparently necessary to generate that specification, and then they said "Oh, by the way, we don't think anyone can read this unless they have sorted it in the right way" -- there was a special sorting for this information -- "and by the way, that method? We've patented it". (laughter) So if you want to read that that, you have to get the patent license on the method of sorting the information.

Jeremy Allison: In order to read it. (laughter)

Sean Daly: You know, that reminds me of the documentation that was requested by the European Commission and which Microsoft, instead of delivering it to the European Commission, made available at the entrance of their headquarters in Redmond, and as it turned out, they were on password protected disks and Microsoft had asked the members of the EC, the Monitoring Trustee and the others, to sign a special license in order to use the special software in order to access the documentation.

Jeremy Allison: That's classic. That's straight out of the Microsoft Communications Protocol Program. I mean, so, Dennis Chapman from NetApp [Network Appliance, ndlr], who is a licensee, gave a talk at one of the [?] conferences where he actually covered what you got when you signed the MCPP programs, how useful it was. One of the things he actually talked about was the only way you can read the documentation is by using special password-protected Microsoft software on certain registered machines with all sorts of...

Volker Lendecke: No way to print stuff.

Jeremy Allison: No, you can't print stuff, you can't search in it.

Volker Lendecke: It's just a pain.

Jeremy Allison: Yeah, it was very difficult to use.

Sean Daly: The devil is in the details with these things, because, I mean...

Volker Lendecke: Although, to be honest, Dennis also said they fixed that later on. But that was in the first versions. I think he said that he got [?] protected PDFs now.

Jeremy Allison: OK, so maybe that, but yeah it does sound like a classic thing out of the MCPP playbook. (laughter)

Sean Daly: All right, well, I know that all of you have worked quite hard over these past few months or even years. A question really for each of you: Has it been worth it?

Volker Lendecke: Yes.

Georg Greve: Absolutely.

Volker Lendecke: Not for the result alone, but for learning how these things work. And having good success after having spent several months working on this, I mean, that's just a bonus after it. But it was very interesting to see how these things tend to work. I mean, I'm a European and, I didn't know before what the procedures in this case are actually. And so, learning this has been very interesting. So, definitely worth it.

Carlo Piana: It was definitely worth it, but we must put more effort into it because we must secure the result. This is the message I want you to bring home, because the result is so much important for the whole software industry. It cannot just be a decision -- which is already a good thing, but it's not enough.

Jeremy Allison: Yeah, I mean, first of all it's been a lot of fun. For a strange definition of fun. But it really is a lot of fun -- it's hard to describe. I think maybe some of the people who were following the SCO court case for Groklaw have realized how much fun the law can actually be. Especially for someone who's used to programming code, sort of watching people sort of program in the language is very interesting to do.

Volker Lendecke: Jeremy, do you remember one of the lawyers actually saying "You could do my job, I couldn't do yours". (laughter)

Jeremy Allison: Yeah, that was probably one of the highest compliments I got from...

Volker Lendecke: I think it was at one of your talks...

Jeremy Allison: Yeah. It's a lot of fun. We haven't won yet because they still haven't released the information...

Volker Lendecke: In a way that's actually usable.

Jeremy Allison: In a way that's actually usable, but the other thing is, it really should inspire people, I think. Essentially, this is a case where the little guys won. I know it's hard to think of the EU as the little guys, you know...

Carlo Piana: Or IBM or Google.

Jeremy Allison: Yes, or IBM or Google, but really, to be honest, they really haven't... all of the big guys, all of the firms, all of the corporations, essentially they... I'll give you an example: I was sat in... before this case was started, I was sat in an Indian restaurant in Cupertino, California with one of Sun's lawyers who was basically telling me about the case, asking me to help, and saying "We..." and I turned to him and I said -- because this was just after the DOJ case when they essentially snatched defeat from the jaws of victory -- and I said to him, "Are you really going to see this through? Because if you bail out on this halfway through, then essentially, it will be a massive disappointment, you will have just let everybody down, it'd be a waste of time. Is Scott McNealy really going to see this through?". He said "Oh, absolutely, it's a point of principle for Scott, blah blah blah blah". Which just goes to show you, you never ever believe... (laughter) So I think it was like two or three years later when Sun basically took two billion dollars to go away. I sent him an email saying "Uh, don't you remember that conversation we had that...?" I never got a reply. (laughter) I just never got a reply.

Sean Daly: Everything after the third martini, it doesn't count.

Jeremy Allison: But the thing is, essentially the little guys kept sticking at it. So, the very first hearing, you know, essentially Volker and I turned up on behalf of the Samba team, and on every single hearing of the case, there's been either Volker, myself, Tridge, Georg, Carlo, just basically the little guys saying "Excuse me, we're trying to compete here", and one by one the giants fell away, took the money and said, "Well, I know competition is tough, but here's two billion dollars and goodbye, good luck". But we kept going and we won. At the end of the day, on the interoperability side, there was the Free Software Foundation Europe and the Samba team were the only two left standing. We were the only people still there. And we saw it through, and what it goes to show is that if you persevere, even if things seem to be against you in the beginning, the little guys can win. The little guys can actually win. You can win in the law, even if it's sort of, a few anonymous people versus a large corporation. You can win and you can win big. I think -- I know Carlo's right, there's still a lot more to be done, but I think we won big today. We won really big today.

Volker Lendecke: Yeah.

Georg Greve: Yes, absolutely. I agree with everything that was said by this amazing team, with which I've worked on this case. And I agree with the whole point about this being a very interesting experience that was often fun. In fact, today I had six of the most fun minutes of my life, I have to say. (laughter) I don't think watching --

Volker Lendecke: Watching Brad --

Jeremy Allison: I thought your face was going to split in half with a smile! (laughter)

Georg Greve: Yeah, I mean, it was -- you had this mental image of Brad Smith hitting this brick wall, you know? It was just -- this was the very first time that Microsoft has actually been stopped. The first time that the law has persevered over Microsoft.

Jeremy Allison: Yeah.

Georg Greve: This is the very first time that actually a competition authority has seen this through to the end and prevailed in court against Microsoft. This is unique. It's absolutely historic in that sense, so I think we do deserve a little bit of celebration.

Jeremy Allison: It's the first time I've seen lawyers doing high-fives to each other! (laughter)

Georg Greve: Actually hugging each other! (laughter)

Jeremy Allison: Yeah -- lawyers hugging each other! Can you imagine that? It was -- the emotional -- (laughter)

Carlo Piana: To give credit to Brad Smith, he was very, very good at showing up at the press conference, giving a very sound speech. He didn't just disappear.

Jeremy Allison: Brad Smith is a gentleman. He's definitely a gentleman. I have a great deal of respect for him. He's behaved impeccably throughout all the occasions -- he came over, he shook hands with everybody, he's been nothing but friendly with everyone. I can't say the same for his corporation, but Brad is a really nice guy.

Georg Greve: That is usually true actually for most of the guys, however the way their company behaves, which they support, is not acceptable.

Jeremy Allison: Yep. Yep.

Carlo Piana: And also a word for the two top lawyers who were on record for Microsoft, Mr. Ian Forrester and Mr. Jean-François Bellis are are really, really top-shot, and this...

Georg Greve: In fact, this is very true. I mean, you have one of the richest companies in the world. I mean, they have more money than God, almost.

Jeremy Allison: Yes, and they have the best talent --

Georg Greve: And they have the best lawyers. The very best lawyers.

Jeremy Allison: People were scared of Forrester.

Georg Greve: Oh, yes.

Jeremy Allison: People were really scared of Mr. Forrester (laughter)

Carlo Piana: And for a reason. (laughter)

Georg Greve: And yet we won.

Carlo Piana: They basically picked the wrong party.

Jeremy Allison: Well, it helps to have the facts on your side. (laughter)

Carlo Piana: I don't know which is the wrong party, because Microsoft pays big, so....

Jeremy Allison: Yeah.

Georg Greve: No, but he lesson here is that the good guys can win.

Jeremy Allison: Yes.

Georg Greve: And there is more work to do. This was round 2 of a couple more to come.

Jeremy Allison: I think so.

Georg Greve: However, we won the first two, and I think we can win the other ones as well.

Jeremy Allison: Yeah -- if we keep going. You know, the great thing about doing our job is that essentially it's easy because we don't have to spin anything. (laughter) It's really easy writing briefs when you just have to tell the truth about what you know. (laughter) It must be really hard on the other side to -- I mean, those guys earn their money, they really must, because, you know, the amount of spin that has to go in on that side is incredible, whereas we just sit down and we say, well, we did this, and we answer this --

Carlo Piana: I couldn't do the same job. (laughter)

Jeremy Allison: Yeah, it would be a very hard job to do on the other side, I think.

Sean Daly: Well, you know, speaking about some of the new frontiers, we all saw what happened with the ISO process for MS-OOXML. Do you guys think there is any plan, or any interest in the European Commission in going after Microsoft on this? I know that they were waiting for the results of this decision before going further with some complaints.

Georg Greve: There is a complaint by the ECIS, the European Committee for Interoperable Systems, of November, I believe, last year, about Office and also Internet issues. And the Commission, to my knowledge, has not yet made a decision whether or not it will investigate that case. We, as FSFE, Samba, and OpenOffice.org have already offered our technical expertise and input as we've done for the previous case, to support that case. And we do hope they will start that investigation. We definitely hope they will do it. And we will stand by them as we've stood by them on this case as well. We think that it's absolutely necessary to end this sort of behavior in all areas. It's very important to understand that, I mean, we've been talking here about interoperability, the workgroup server market, the bundling for the Real Player, but that wasn't really our main concern. These are just two areas of many areas in which Microsoft exhibits the exact same behavior. Now, you know, the court has today said, "This is unacceptable". But this is not only unacceptable in these two areas, it's unacceptable in all areas.

Jeremy Allison: Because what they do is very, very effective. I mean, the thing to remember is, yes, we won in court, but essentially we're losing in the marketplace. Between the beginning of the case and now, I think the desktop monopoly went down from, I think it was, 97% to 92% -- and these are figures from the seven states, the California Group who filed with the DOJ --

Sean Daly: Right, the "rogue states."

Jeremy Allison: Yeah, the "rogue states", as it were. But the workgroup server market has gone from, I think it was either 40% or 45% -- I'd have to look -- it's now 70% Microsoft. So if you look at things like Active Directory, Exchange servers, they are steamrolling in that market. It's at the tipping point, where if something isn't done, if this information isn't released and competitive products can be created, they will own that market with a monopoly the same as the desktops. Completely.

Sean Daly: I remember not so long ago, only 12 or 13 years ago, that you know, if you couldn't run a NetBEUI protocol on your PC to connect to Novell servers, you couldn't do anything.

Jeremy Allison: Uhhhh...

Volker Lendecke: That was IPX rather.

Jeremy Allison: that was IPX. (laughter)

Sean Daly: IPX, I'm sorry.

Volker Lendecke: We're engineers...

Jeremy Allison: Yeah, sorry, you've getting the engineers here. (laughter)

Sean Daly: See, maybe it's that far ago that, you know, I get mixed up. NetBEUI was the Microsoft protocol.

Volker Lendecke: Yeah -- right.

Sean Daly: And IPX was --

Volker Lendecke: Windows for Workgroups was NetBEUI.

Sean Daly: Right, Windows for Workgroups was NetBEUI , and OS/2 was NetBEUI, and IPX was Novell.

Jeremy Allison: So I was listening to one of the lawyers briefing the press after the case. And he came up with a very, very important point. Some of the Microsoft people on the case and the Microsoft supporters on the case -- I think it was specifically ACT, was saying, "Oh, this is terrible, this punishes innovation in Europe and companies now will be frightened that if they are innovative and successful that the EU will take their innovations away." And so one of the Commission lawyers, lawyers on our side . . .

Volker Lendecke: It was Thomas Vinje.

Jeremy Allison: Sorry, yes. He basically said, "Look", he said, "If you think about any of these markets, who were the innovators? Novell was the innovator. Novell created singlehandedly the workgroup server market. It was taken away from them by the monopoly.

Carlo Piana: And Real created --

Jeremy Allison: And Real created the streaming media -- innovated and created the streaming media market. And they're gone now, I mean, nobody uses Real -- well, very few.

Carlo Piana: And Netscape invented the browser game, and they were blown up.

Jeremy Allison: They were annihilated.

Sean Daly: It's important to say "streaming media", because in Microsoft's communications, they like to talk about all media players together such as iTunes, QuickTime, whereas it's really the streaming media market that was killed off by Microsoft with Windows Media Player.

Jeremy Allison: Yes. So market definitions have been a really interesting part of the case. So if anyone is interested in looking at the documents, some of the biggest arguments in the case have been about "what is the definition of the market?"

Volker Lendecke: "Is there a workgroup server market?"

Jeremy Allison: "What is a workgroup server market?" "Does it exist?" "What is a streaming media market?" And they're very technical legally, but if people are interested, I would recommend to read them. The actual arguments are not as bad as you might think, in terms of reading the documents, because they are written for lawyers not engineers, and so they're actually quite open to the layperson if you want to just read a lot of the briefs; they're really interesting.

Sean Daly: OK, a last question for Carlo. Now I keep hearing all the time about Article 82. And it seems that everybody in Europe who's interested in Article 82, which I think concerns competition --?

Carlo Piana: It's Abuse of Dominant Position.

Sean Daly: Abuse of Dominant Position. Well, it seems that everyone who is interested in that part of law has been watching this case under a microscope. In fact, it seems there was a big meeting in Italy perhaps a week or two ago in which some changes in the Article 82 were claimed by the European Commission to be postponed until the result of the Microsoft case was known. Can you tell us a little about how that European law is?

Carlo Piana: Well, antitrust law is a very short part of the European treaties, and it's made basically under court law. So this part, this very provision is about a company becoming dominant AND abusing its dominance. There is nothing wrong even to achieve monopoly. But from great power comes great responsibility.

Georg Greve: That's Spiderman. (laughter)

Carlo Piana: So if you get to a monopoly, you must be very cautious. You're not just a layman. You are somebody who can control the market and make the market fail. So it's all about insuring that the market works, so a competitor can show up and challenge your dominance. Today, with technological lock-in, the market power, Microsoft makes sure that nobody can get to its position or to even get a good chunk out of it. So, the law is about opening the competition. That's it. It's simple. It's not that complicated. It's not stealing --

Volker Lendecke: Really, restoring --

Carlo Piana: It's not stealing secrets, or whatever. It's not abusing great power.

Jeremy Allison: So one last thing I want to say, if I can get in.

Sean Daly: Sure.

Jeremy Allison: To people who haven't been in the courtroom, we had a real treat, because it was a European courtroom, so all the lawyers wore their formal robes, so there was everyone there, there were people from Scotland, there were various people from Germany and France, all wearing their legal robes, but I'll tell you something. Nobody, absolutely nobody looks as sharp as an Italian lawyer in formal robes. (laughter) You know, the other guys, they've got their robes on, their wigs or whatever and then Carlo puts on his robes, and it's like "Wow, THAT's style."

Sean Daly: Well, how can you argue with a guy who quotes Dante on the homepage of his blog?

Carlo Piana: Thank you, you noticed that. (laughter)

Jeremy Allison: I hope there are some pictures, I hope people get to see some of the coverage, right, because man, you've got to see those silver epaulets. They're just -- wow, I was so impressed.

Georg Greve: The message is: hire Italian lawyers for this. (laughter)

Jeremy Allison: Yep, they have the best robes. (laughter)

Sean Daly: Well, thank you so much to all of you. I think that you've deserved a rest and a celebration for today. Maybe work will start again tomorrow, but today's a day for celebration.

Jeremy Allison: We're already fixing Samba bugs. (laughter) While we're in the hotel, we're already fixing Samba bugs, because it's always broken. But I think we'll probably go out and get very, very drunk tonight. We would have gotten very drunk tonight even if we lost, but now, we're going to be happy drunks, not miserable drunks. (laughter)

Volker Lendecke: Yeah.

Sean Daly: OK, thank you.

Jeremy Allison: Thanks.

Georg Greve: Thank you.


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