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I filed a private lawsuit with Microsoft over non-contractual tying by control of the interface.
My filed complaint is attached at the end of this email, but first I let myself get distracted by Behrman's remarks
about AG laziness, etc.
John Robert BEHRMAN wrote:
> <P><FONT COLOR="#000000">I wish economists and engineers were in the driver's
> seat when it comes to action against Microsoft. But, the best chance for
> that slipped by when the FTC failed to act some time ago with the sort
> of rather simple measures that would have facilitated more competition
> then, less litigation now. But, the FTC was more lazy and cowardly then
> than even the Texas Attorney General is today. All we are looking at, in
> the decrepit FTC and Texas AG's Office, are a bunch of government lawyers
> looking to get into private practice by sucking-up and copping-out.</FONT><FONT COLOR="#000000"></FONT>
> <P><FONT COLOR="#000000">The one thing I obviously identify with is Microsoft's
> complete contempt for the sort of lawyers they have had to contend with
> up to now: Clintonite fund-raisers, IBM's thundering horde of bloody-hands
> defense lawyers, and, of course, all those intellectual property lawyers
> just like themselves at Borland, Sun, Novell.</FONT><FONT COLOR="#000000"></FONT>
There may be some truth to your view that our society is not structured to reward anti-trust lawyers who actually
perform vigorously, and that perhaps this lack of reward, coupled with low funding, results in a sad effect. It is
also true that attorney generals probably feel a sense of responsibility to not over-react when penalizing a company, a
responsibility that private action lawyers defer to the judge and jury for.
I think that is not the only story though. We need to also recognize that your average government lawyer hasn't been
raised in the open systems culture that almost every hacker has exposure to (agreeing or not), and as a result, perhaps
doesn't really understand at the emotional level why these issues are so crucial to an industry that is of growing
national significance. That is why they take a pass on addressing the crucial issue of what I call interface tying.
This would all be fixed if we corrected by legislation (as Lawrence Sullivan suggested in his excellent book) the
unfortunate precedents that make private action anti-trust lawsuits impractical against villains who diffuse their
villainy. Fortunately, Microsoft is so huge that we probably can bring them down privately, since they have
substantially harmed us even though we are many. I hope that once there is a precedent established against Microsoft,
it will be worth the time cost for every web user to register for a class action lawsuit against them.
If you couple the desire to not appear like a boat rocker with not having the background to understand the importance
of the deeper issue, and at the same time not wishing to endure the continuing criticism in the press for inaction,
well, it seems you get what we got. Reno sure handled the press nicely don't you think?
I filed the lawsuit that follows, shortly before Reno announced that she was going to fine Gates an amount he could
afford while evading what I feel is the technical heart of the issue: non-contractual tying by control of interface and
integration. I feel that this is an issue for all software components, and the browser is only a well appreciated
instance of a general problem that needs a general resolution by the courts.
I am completely ill-suited for filing such a lawsuit, but until I see someone more qualified go after what I see as the
heart of the issue, I intend to pursue it.
Plaintiff: Hans Reiser
6979 Exeter Dr.
Oakland, CA 94611-1625
UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT OF CALIFORNIA
Division: San Francisco Case Number: C-97-3778-SI
Amended Complaint: Restraint of Trade --- Hans Reiser vs. Microsoft Corporation
Venue is proper within the Northern District of California in that damages to plaintiff's property and person occurred
in this district.
2) Plaintiff Hans Reiser is a natural person, U.S. Citizen, and resident of Alameda County. Plaintiff is a sole
proprietor doing business as Namesys. He is a producer of an operating system component described by theorists as a
naming system, and by usual usage as a file system.
3) Microsoft Corporation is a corporation organized and existing under the laws of the State of Washington, with
headquarters located at One Microsoft Way in Redmond, Washington, in King County. Microsoft is believed to be doing
business in California.
4) This action arises under the Sherman Anti-Trust Act (15 U.S.C.A Sections 1-7), and 15 U.S.C.A section 15.
5) Microsoft employs the use of tying by control of interface/integration (hereafter referred to as interface tying).
This violates the prohibition against restraint of trade in section 1 of the Sherman Anti-Trust Act (15 U.S.C.A
section 1. Plaintiff asserts that the reasoning embodied by the per se rule against contractual tying also applies to
interface tying, making such conduct illegal. The tying of Internet Explorer to the Windows family of operating
systems, Visual Studio, and the Microsoft Office product line is an instance of Microsoft's general corporate strategy
of employing tying, necessitating that Microsoft be enjoined against further such behavior.
6) Plaintiff will specifically deny the relevancy of questions as to whether a software component is an OS component or
a component of something else. Proclaiming that tied and tying products are one product is not sufficient defense vs.
allegation of tying. Plaintiff asserts that the correct issue is whether there exists a competitor desiring to supply
said component, and whether defendant has performed due diligence in avoiding restraining said competitor's trade
through the integration and design of its monopoly product.
7) Plaintiff asks the court to explicitly recognize that software has a unique flexibility in enabling openness to
third party components that, for instance, factory line assembled machinery typically does not, and that this unique
flexibility suggests unique treatment in anti-trust law. Software technology both has an enhanced vulnerability to
illegal tying as a result of its complex interconnected nature, and, increases the technical feasibility of untying its
components as a result of modern developments in software development methodology, installation configuration, and the
downloading of OS components over the Internet. Technologies ranging from package management systems to object request
brokers to kernel modules to the Linux methodology of configuring and then recompiling the operating system as
configured, all of these offer various means of avoiding unnecessary restraint of third party trade. Modern software
development technologies are rapidly increasing the flexibility available in component configuration to those who
choose to employ it. There is no essential barrier to Microsoft supplying an initial configuration sufficient to
connect to the Internet, and then allowing the user to configure in the desired OS components from a choice of all
available vendors who have registered, total up the bill, take a credit card number, pay each supplier for the
components, download them, and recompile the OS. This method is merely one of many feasible for the purpose of
lessening restraint on trade. A primitive version of this without payment provisions, with an interface suitable for
its user base, and with primitive automation, is currently employed by Linux and proven effective in practice. The
only effective barrier to the use of this for Windows has been the threat of increased competition to Microsoft that it
8) Plaintiff asks that defendant be required to demonstrate due diligence in arranging that the components of its
software systems are separately available to competition from component vendors, so as to avoid creating unnecessary
restraints on trade. Given the defendant's history of not showing such diligence, and additionally of not mere
negligence but actual malice to be evidenced at trial, this should involve requiring adherence to a mandated formal
procedure. A feasible example of such a procedure would be for component vendors to contact Microsoft, request
cooperation in integration of their components as optional configurations, and where disputes arise, to settle them via
reference to a binding third party arbitrator with expertise in relevant subject matter. Said arbitrator would have
responsibility to make a best faith effort to represent user interests in resolving technical tradeoff issues that
arise, such as whether an interface lacks sufficient abstraction to avoid being unnecessarily specific to an
implementation method, whether it is worthy of correction, and if so, according to what release schedule changes should
be made to it. Microsoft, component vendor, and arbitrator would each have one vote, with two votes out of three
resolving an issue. Other effective alternative dispute resolution mechanisms exist that would be acceptable to
9) Plaintiff has been damaged by inability to effectively enter the market for file systems for the Windows family of
operating systems as a result of Microsoft's lack of due diligence in arranging that the components of its software
systems are separately available to competition from component vendors. This damage shall be described at trial.
10) The web browser is the primary interface to the primary world of modern information workers, a virtual world known
as the World Wide Web. Through unlawful restraint of trade, the defendant has restrained the plaintiff's freedom to
select the interface of his choice to his primary world. This is an act which inflicts profound cultural, economic,
technical, and aesthetic damage to the plaintiff, damage valued at three months of income which is $37,500.
11) WHEREFORE, plaintiff prays to be granted judgment against the defendant as follows:
12) That defendant be adjudged to have violated the anti-trust laws as herein alleged.
13) That an injunction be issued requiring Microsoft to immediately cease and desist from further interface based
tying, and requiring it to institute an effective formal policy for arranging for software components to compete
separately where potential competitors make such request.
14) An award of actual damages, according to proof at trial, not less than $37,500, to be trebled pursuant to 15 U.S.C.
section 15, to provide remedy for damages to the plaintiff as a user of browsers.
15) An award of actual damages, according to the court's assessment of it upon description at trial, to be trebled
pursuant to 15 U.S.C. section 15, to provide remedy for damages to the plaintiff as an OS component vendor.
16) That plaintiff attorney's fees be paid pursuant to 15 U.S.C.A Section 15.
17) Cost of suit, and any prejudgement interest found appropriate by the court.
18) For such other relief as the court deems proper.
6979 Exeter Dr.
Oakland, CA 94611-1625
Amended Complaint: Restraint of Trade --- Hans Reiser vs. Microsoft Corporation 5