Microsoft’s Concessions

So Microsoft says they’ll make some minor changes allowing computer manufacturers to make some cosmetic alternations to Windows. Dan Gillmor says this is no big deal:

So what? As a Microsoft executive noted on a federal-court witness stand in 1998, using the add-remove process on Internet Explorer would do nothing but hide the menu items and icons that launch the browser. Because Microsoft has gone to great lengths to make the browser code part of the Windows code, the Microsoft browser would still pop up for many Internet-related purposes. Besides, Internet Explorer is effectively a monopoly, having crushed Netscape’s rival product years ago largely due to its integration with Windows.

First, Internet Explorer is not even close to a monopoly. Second, anytime I see someone say “Microsoft beat Netscape through Windows integration” I really want to gag. Microsoft beat Netscape because Netscape started putting out browsers that sucked — they were buggy and non-compliant with web standards (not that IE was 100 percent compatible either, but it was light years ahead of Netscape).

I have to say I’m also astounded when I see something like this,

In each canned quote, an executive of the PC manufacturer attests to how “excited” he is over the launch of Windows XP — understandable, since the heavily promoted operating system might goose stagnant PC sales.

But Microsoft won’t let manufacturers change anything that matters in the operating system.

Is Gillmor serious? Do he and other people really think that if I buy a Compaq PC I want to end up with an OS that is significantly different from the Windows OS in my Hewlett Packard machine? That’s not a competitive marketplace that’s a worst case scenario for consumers. (During the brief period that Apple allowed Mac clones, I don’t remember them allowing manufacturers to make significant modifications to the OS).

Gillmor Doesn’t Get It

Dan Gillmor doesn’t have an e-mail address listed on his site or I’d e-mail him, but I think he and others who are trying to put an anti-MS spin on the Appeals Court ruling just don’t get it.

The court’s treatment of “tying” Internet Explorer to the operating system is surprising, too, in that it doesn’t absolve Microsoft. Instead, the court returned this piece of the case — a crucial one — to the trial court for further consideration.

So the breakup is out. But remedies for anti-competitive behavior are not. And the all-important findings that Microsoft has and abused its monopoly remain intact.

What Microsoft has won is time. It can continue its brutal practices for a while longer, building into Windows and Internet Explorer and Office any and all technologies that will further solidify the monopoly. It can extend its reach into new markets, using its $30 billion in cash (which grows by a billion dollars a month. The company surely figures that it’ll be entirely above the law by the time the law catches up.

Sure, and pigs might fly. First, the Appeals Court outright reversed the finding of fact that Microsoft had attempted to monopolize the browser market. Then it remanded back to a new judge the issue of whether or not integrating IE into the OS was legal or not.

But how is the DOJ going to prove that integration of IE into the Windows OS is violates the antitrust law when the appeals court has already ruled that the reasons outlined by Judge Jackson for concluding so don’t meet an acceptable standard of proof? Is the DOJ just going to pull additional evidence out of its hat? I doubt it. Furthermore, with Jackson off the case and being cited for his improper ex parte communications, a new judge is probably going to give Microsoft a lot more leeway to present their case than Jackson did in his court.

As for the remedies, they’re headed toward Microsoft but what are the odds this case will ever go before another judge? Very, very low. With the Appeals Court making a breakup impossible, Microsoft now has the leverage it needs to reach an advantageous settlement. This is a prospect the Justice Department is going to be very amenable to since it seems clear that John Ashcroft and the rest of the Bush administration don’t want this case.

This whole thing will almost conclude with a slap-on-the-wrist-fine and some meaningless agreement in which Microsoft promises not to enter into exclusionary deals with ISPs and to stop threatening competitors like Intel who want to enter into deals with Microsoft’s competitors.

Meanwhile, the legal coast is essentially as clear as it is ever going to be for Microsoft’s .Net plans for world domination.

Torvalds Needs to Find Another Favorite Scientist

Dan Gillmor published some comments from Linus Torvalds regarding that Craig Mundie speech. Torvalds makes some important points, but falters in his choice of heroic scientific researchers,

I wonder if Mundie has ever heard of Sir Isaac Newton? He’s not only famous for having basically set the foundations for classical mechanics (and the the original theory of gravitation, which is what most people remember, along with the apple tree story), but he is also famous for how he acknowledged the achievement:

“If I have been able to see further, it was only because I stood on the shoulders of giants”.

One of the greatest scientists of our time, having done more for modern technology (and thus, btw, for the modern economy) that Microsoft will ever do, acknowledged the fact that he did so by being able to use the knowledge (what we now call “intellectual property”) gathered by others.

In fact, Newton was the scientific version of Microsoft in his day — prone to fits of rage against his intellectual peers and a master of Microsoft-style tactics.

Look at how Newton handled the dispute with Leibniz over who had priority for inventing calculus. Newton, by then president of the Royal Society, appointed his own “impartial” committee to review the competing claims and then mangnaminously agreed to write the final report from this “impartial” committee (though his name was nowhere to be found on the report). To provide further aid, Newton anonymously wrote a review for the prestigous Philosophical Transactions of the Royal Society of the committee report he had written.

Reminds me a lot of how Microsoft conducts its much-publicized server tests — cripple the competition and stack the jury.

Journalists and Privacy

Dan Gillmor wrote an article about journalism and privacy in which he describes telling fellow journalists at a conference that they might have to give up some of their investigative tools for the sake of the privacy of individuals.

Gillmore thinks journalists can help further the cause of privacy by reporting on violations of it more. One of the problems, however, is that there is rank hypocrisy about privacy at the core of most newspapers — namely they casually violate the privacy of others while jealously guarding their own privacy to extreme limits. I have a friend, for example, who is a journalist and constantly complains how corporations and foundations act so secretly, with most of their decisions hidden from public view. But, of course, this is also how editorial boards at newspapers act.

Journalists love to trumpet it when they get an insider at a corporation to hand them private corporate documents, for example, but go absolutely bananas when police ask to see unpublished crime photos. For example, newspaper photographers in Lansing took hundreds of pictures of students rioting at Michigan State University, but refused to let police examine photos that hadn’t been published citing First Amendment protections. When a company tries to prevent documents from being publicized based on First Amendment issues, however, they usually get exocriated by the press.

In fact, in large measure, reporters and newspapers often seem to think that the First Amendment is largely their sole providence — reporters apparently often have no compunction taking actions which they would wail loudly about if done by any other social actor.

I read a case a few months ago where a journalist ethic committee actually censured a reporter. The reporter had essentially came upon the unlocked car of an important person he was doing a story on and stole documents from the person’s car. This is an extreme example, to be sure, but it is representative of a journalistic culture that sees itself as superior to other social institutions, which in turn justifies extreme measures (anytime anybody suggests that reporters should limit, say, the number of hidden camera investigations, the reply from journalists is always a variation of an “ends justify the means” argument — “but we couldn’t get that story if we don’t violate somebody’s privacy.”)

This is part of the reason why the reputation of journalists has fallen so much in recent decades. Many people realize that journalists are often as cutthroat and willing to cut ethical corners as the companies and individuals they’re writing exposes about.