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Ralph Nader/CPT letter to DOJ regarding alternative OSs
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Info-Policy-Notes | News from Consumer Project on Technology
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June 15, 1998
The following is a letter from Ralph Nader and James Love to
Joel Klein at the Department of Justice. The letter says:
- Microsoft is so hostile to rival developers and so
unwilling to abide by the spirit of agreements, it is
important for DOJ to focus on actions that will lower entry
barriers for new operating systems that compete with
Windows.
- the 1995 DOJ/Microsoft consent order regarding Windows
licensing practices is deficient in important respects,
particularly insofar as Microsoft can use its market power
to induce original equipment manufacturers (OEMs) require a
sale of Windows with every machine. Remedies are suggested.
- Technology makes entry by new operating systems
practical. However, OEMs have to be free to offer
alternatives without risking retaliation from Microsoft, and
OS developers need access to technical information to
support the next generation of hardware devices.
- Companies like Apple and IBM have shrunk from the
challenge of competing with Microsoft directly in the mass
market for operating systems. DOJ is asked to meet with
persons in the free software development community to better
appreciate the nature of the free software movement,
particularly as it relates to antitrust issues.
Jamie Love
Love@cptech.org | http://www.cptech.org
202.387.8030
The letter is on the web at:
http://www.essential.org/antitrust/ms/jkjun151998.html
The text follows:
Ralph Nader
P.O. Box 19312
Washington, DC 20036
Ralph@essential.org
James Love
Consumer Project on Technology
P.O. Box 19367
Washington, DC 20036
202.387.8030; fax 202.234.5176
http://www.cptech.org
love@cptech.org
June 15, 1998
Joel I. Klein
Assistant Attorney General
Antitrust Division
U.S. Department of Justice
Washington, DC
Dear Mr. Klein:
I. Executive Summary
- Microsoft's hostility toward antitrust measures, and
the repeated failure of its management to abide by the
letter or spirit of the agreements they sign, raises serious
doubts that Microsoft can ever be expected to live up to the
spirit of antitrust remedies which are based upon conduct
rules. Many consumers and software developers are appalled
at Microsoft's continued efforts to use the Windows OS as a
weapon against its competitors, and its repeated attacks on
non-proprietary Internet and computing standards, and are
now interested in considering alternatives
- Technology is creating opportunities for non-Microsoft
operating systems (OSs). The availability of large hard
drives, boot management software, interoperability based
upon Internet open protocols, modular programming languages
that lower costs to port applications across platforms, and
easily cloned GUI interfaces, make alternative OSs more
appealing and practical. One should not assume that every
consumer in the World will always want to use the same
operating system, sold by the same company.
- Today it is impossible to buy a nationally branded
personal computer without buying Microsoft Windows, and
consumers cannot even return Windows for refunds. No
nationally branded computer vendors sells PCs without non-
Microsoft operating systems pre-installed, even as a dual
boot option.
- Microsoft uses its market power to discourage PC
manufacturers from offering computers with non-Microsoft
products, including non-Microsoft operating systems. There
exist several promising non-Microsoft alternatives,
including free software such as GNU/Linux or FreeBSD, or new
systems like BeOS. It will be difficult for these
alternatives to succeed in the broader consumer market if
consumers cannot buy PCs with the alternative OS pre-
installed.
- The 1995 DOJ/Microsoft consent order has been
ineffective in several important respects. DOJ should seek
non-discriminatory licensing of Windows and Office products,
so that PC vendors can offer non-Microsoft products without
fear of retaliation from Microsoft, and ban per-computer
licensing of Windows.
- One of the most important challenges to Microsoft's
monopoly is coming from the free software community, which
is organized in a variety of ways. Free software products
have already achieved significant success in server markets,
and are becoming closer to mass market consumer products.
- The Free software movement represents a major change in
the way that complex software projects are organized, which
could become more revolutionary and perhaps more fundamental
than the changes associated with the Microsoft or Apple
challenges to IBM. It is becoming more important at the
same time that companies like Apple and IBM are abandoning
development of mass market operating systems.
- Developers of free software are concerned that
Microsoft may use its market power to limit access to
technical information needed for free software developers to
write drivers for the next generation of hardware devices.
- DOJ needs to better understand how the free software
movement works, and to meet with developers and users from
the free software community.
II. DOJ should focus on barriers to entry faced by
alternative operating systems
We are writing to ask that the United States Department
of Justice (DOJ) antitrust authorities focus on barriers to
entry faced by alternative operating systems (OSs),
including both proprietary systems and those based upon free
software.
According to persons who use alternative operating
systems, or who develop software to run on alternative
operating systems, there are several concerns which should
be addressed by antitrust authorities.
One set of issues concerns "original equipment
manufacture" (OEM) distribution. Perhaps the most basic
issue is to ensure that OEMs can sell PCs with a non-
Microsoft OS pre-installed without risking retaliation from
Microsoft. A related issue concerns the ability of OEMs to
sell personal computers which run more than one OS,
including one or more non-Microsoft OS, using readily
available "boot manager" software. At a minimum, Microsoft
should be banned from signing contracts with OEMs that
require the OEM to charge consumers for Windows software
even if the consumer doesn't want the software and won't use
the software.
A second set of issues concerns access to technical
information needed to support drivers for devices supported
by the OS. Computer users and software developers are
concerned that Microsoft may use its monopoly power to limit
access to technical information needed to write drivers for
the next generation of hardware devices.
Over the past several months we have received numerous
messages from consumers who want to buy computers to use
with non-Microsoft operating systems. They want the choice
of purchasing a computer with the following options:
1. a non-Microsoft operating system pre-installed,
2. a "dual boot" computer that can run Microsoft Windows
or a non-Microsoft operating system, where the user
selects the OS at the time the computer "boots," or
3. a "naked" computer, sold without any operating system,
where the users acquire and install the OS themselves.
On June 3, 1998, we published a survey of manufacturers
of personal computers. David Chun, a university student
working with us, contacted OEMs, identifying himself as an
individual consumer. He asked if the OEM would sell any
model of personal computer with an alternative operating
system, or at least sell the system without Windows. (See
attachment A, or
http://www.essential.org/antitrust/ms/jun3survey.html). In
each and every case, the OEM sales personnel said that the
purchase of Microsoft Windows was required, even when the
caller indicated that he did not want to purchase Windows
and would not be using Windows. When OEMs were asked if it
were possible to refuse to sign the Windows license and
return the Windows software, every OEM said the refund would
be zero. We conclude from this exercise and similar surveys
we have conducted, as well as from many calls from
consumers, that the 1995 agreement concerning pre-processor
licensing fees has been ineffective in several practical
areas, and that consumers who do not want to use Microsoft
Windows are paying a "tax" to Microsoft each time they buy a
nationally branded computer.
It is indeed incredible that in 1998, years after
Microsoft signed a consent degree on Windows licensing with
DOJ, things have not changed at all for consumers on the
ground, raising fundamental questions about the ability of
Microsoft to induce OEM behavior which is putatively
prohibited by the consent degree. The 1995 agreement does
not insulate OEMs from pressure Microsoft can deploy with
discriminatory pricing of licenses for Windows or the core
applications included in the Microsoft Office suite.
We are also seeking guidance concerning the provisions
in the 1995 consent agreement, as they relate to the OEMs
installation of Windows on dual boot PCs. Specifically, do
OEMs have the unambiguous right to sell PCs with Windows and
a non-Microsoft OS on the same machine, sharing the same
hard drive?
As indicated earlier, commercial distributors of
GNU/Linux have approached a number of OEMs, to get a
nationally branded PC shipped with a pre-installed version
of GNU/Linux, or as a dual boot machine with both Windows
and GNU/Linux installed. One leading Linux distributor
told us that OEMs are extremely reluctant to ship PCs with
pre-installed versions of Linux, for fear that the OEM will
suffer from discriminatory treatment by Microsoft. The
extremely competitive nature of the OEM business makes small
price increases for Microsoft Windows or Office licenses
very significant for OEMs. We are concerned that in the
absence of non-discriminatory licensing for Windows or
Office products, Microsoft may exercise too much control
over the shipment of non-Microsoft products, including
alternative operating systems.
The issues concerning access to technical information
and drivers for the next generation of hardware devices are
complex. Again, we are concerned that Microsoft can use its
market power to encourage hardware vendors to develop
products, such as the so-called "win-modems" which only work
with one operating system. If Microsoft engineers the OS,
including its new use of television spectrum, to require
secret and proprietary interfaces, it may provide a major
barrier to a new OS, which would not work with new hardware
devices. Our concerns on these issues are heightened by the
fact that the U.S. Congress is considering legislation which
many believe will be unduly restrictive concerning reverse
engineering (http://www.dfc.org/issues/wipo/wipoimpl.html),
and there are similar concerns regarding the proposed
changes to Article 2B of the Uniform Commercial Code.
(http://www.cptech.org/ucc/ucc.html)
III Technology makes entry by new operating systems
practical.
There are several reasons why we believe consumers have
an important stake in the development and success of
alternative operating systems, and why this is even more
true in 1998 than it was in 1995.
1. The Internet has made data itself much more portable,
and it is no longer important for consumers to share
the same operating system to share data.
2. Applications are much more portable than they were in
the 1980s. Software developers are now using modular
development tools, such as C++ or Java, which make
ports to new OS platforms much less costly than when
developers used older languages, or assembly language.
3. The economics of disk storage have radically changed.
New PCs are shipping with vast disk space, making it
practical for consumers to install more than one OS on
the hard drive. For example, Dell is now shipping
desktop computers with hard drives as large as 16.8
gigabytes
(http://www.dell.com/products/dim/hdrive.htm). Most
alternative operating systems can easily be installed
in partitions of 1 gigabyte.
4. Competition among operating systems is a spur to
innovation. Microsoft Windows is a response to the
Apple Macintosh, for example.
5. User interfaces can be standardized across operating
systems. Microsoft Office works the same on a
Macintosh and Windows 95. WordPerfect and Netscape
Communicator look and work the same on Windows 95 and
Linux.
Microsoft's hostility toward antitrust measures, and
the repeated failure of its management to abide by the
letter or spirit of the agreements they sign, raises serious
doubts that Microsoft can ever be expected to live up to the
spirit of antitrust remedies which are based upon conduct
rules. Many consumers and software developers are appalled
at Microsoft's continued efforts to use the Windows OS as a
weapon against its competitors, and its repeated attacks on
non-proprietary Internet and computing standards, and are
now interested in considering alternatives.
We encourage and support the development of alternative
operating systems, including those which are based upon
proprietary systems, such as the highly regarded BeOS, which
supports an impressive array of new multimedia capabilities
which clearly outperform Microsoft's products in many areas,
as well as other commercial OS ventures. Your staff can
find information on various commercial alternatives at web
sites like AltOS (http://www.altos.org.uk/linksindex.html),
OS News (http://www.osnews.com/) or Convergence
International (http://www.convergence.eu.org/).
IV. The Free Software Movement is Important
It is also important for DOJ to recognize the
importance of the free software community. As you may know,
there are many different institutions and movements to
develop free software, both for operating systems and for
applications, many of which run on different OS platforms.
These are serious software products. Yahoo, Inc, which is
valued at more than $5 billion, runs the largest web site on
the Internet on FreeBSD, a free Unix operating system, and
Apache, which is free server software. Indeed, Apache is a
more widely used server than anything sold by Microsoft.
There are many different models under which free
software is developed. Thousands of software programs are
developed under the GNU "copyleft" system, such as the
highly rated GNU C++ compiler, and Linux, a Unix like system
that has an estimated user base of 7 to 10 million (See
http://www.gnu.org, and http://www.linux.org). The FreeBSD
project is a non-copyleft Unix system that is in the public
domain (http://www.freebsd.org).
The Xfree86 project develops a powerful cross platform
windowing system that many prefer to Microsoft Windows
(http://www.xfree86.org). It is supported by contributions
from dozens of technology firms worldwide, including Compaq,
S3, Trident, Number Nine, ATI, UUNET, S.u.S.E., Tekelec
Airtronic GmbH, Xtreme, and Yokogawa Electric Corporation,
to mention only a few.
The Apache server is developed by the Apache Project
(http://www.apache.org/). The popular software runs on Unix
(different flavors including FreeBSD, Linux, Solaris,
e.t.c.) OS/2 and Microsoft Windows. Although the product
was only released in early 1995, by January 1998, Apache was
used on more than half the domains on the Internet. (50.24%
of the 1,834,710 sites,
http://www.apache.org/press/05Jan98.txt). Many of the
developers of Apache are IT professionals who support the
Apache Project so they can have a stable open source code
alternative to proprietary systems, such as Microsoft's NT
server products. A similar effort supports Perl, a popular
programming language often used in Internet applications
(http://www.perl.org/).
There are countless combinations and permutations of
these products and systems. For example, you can download
Linux over the Internet for free, or you can purchase
various "distributions" of the software from commercial and
non-commercial organizations
(http://www.linux.org/dist/index.html). Companies like Red
Hat or Caldera wrap various value added commercial products
around GNU copylefted elements of the distribution, as well
as software products which are distributed under the FreeBSD
license, the Xfree86 license, the Netscape general public
license, or many other variations. You can also buy
commercial software, such as office productivity suites from
Corel, Applixware or StarOffice, or commercial server or
network products from Novell or Netscape, for example, which
run on top of a GNU/Linux or FreeBSD system.
What is astonishing is the sheer power and quality of
many of the free software products, and the way in which
data users have successfully launched products and entire
operating systems that support demanding mission critical
tasks. It is also interesting to note that Microsoft's
predatory pricing practices, which have been often used to
destroy its commercial rivals, cannot be used as a weapon
against free software developers (although Microsoft can
engage in other harmful antitcompetitive actions, such as
acts which discourage OEM sales of PCs with a non-Microsoft
OS pre-installed for users, or actions which make it
difficult or impossible for free software developers to
obtain technical information needed to write device
drivers). We are also mindful that large companies like IBM
and Apple have shrunk from the challenge of competing with
Microsoft directly in the mass market for operating systems.
Free operating systems like FreeBSD and Linux are
evolving, and are approaching something that can be used by
a general consumer audience. The Xfree86 windowing
environment is an excellent graphical user interface that
many users already prefer to the Windows interface. One
area for improvement concerns better installation routines
and broader support for hardware devices. Indeed, much of
the user interest in OEM pre-installed distributions of
Linux, for example, is based on consumers wanting to avoid
the initial setup, and be assured that the Linux
distribution will support the various hardware elements,
such as video cards or backup devices.
People in the free software community are concerned
that Microsoft, or its business associates, may create
barriers to access to important technical information needed
for free software development, particularly that information
needed to write device drivers or better installation
routines. This is particularly important when the free
software products themselves typically do not generate
income, and the development is done by highly skilled and
motivated volunteers, who cannot afford even modest fees
that are sometimes required to obtain access to data. Also,
free software products cannot be distributed if authors are
responsible for per distribution royalties of any kind.
We believe the modern free software movement is one of
the most impressive examples ever of consumers organizing to
create alternatives to high technology monopolies. It is a
major change in the way that complex software projects are
organized, which could become more revolutionary and perhaps
more fundamental than the changes associated with the
Microsoft or Apple challenges to IBM.
We hope the present Administration will give weight and
attention to the concerns of the free software users and
developers, a community which lacks the public relations,
lobbying and legal resources of large firms. In this
respect, we ask that DOJ meet with persons in the free
software development community to better appreciate the
nature of the free software movement, particularly as it
relates to antitrust issues, before DOJ becomes too
committed to a particular course for the current litigation
or the eventual remedies addressed in settlements.
Thank you for your consideration of these issues.
Sincerely,
/s/
Ralph Nader
/s/
James Love
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