Re: Alternative MS solutions - A reply to Mr. Mettler's comments

[rd@cottonwood.com (Rick Dahlgren)]

Absolutely!

Whatever the DOJ gets had better be by mutual consent in a positive,
moving-forward break....otherwise all will be for no good purpose.

And THANK YOU for at least one other voice that thinks java's new clothes
don't really exist.  

Who will ever make the machines transparent to the functions will win.  To
tie my shoes....I just tie my shoes.

Great exchange.  Do more.

Rick Dahlgren
Cottonwood Communications
rd@cottonwood.com

>My apologies for the length of time this reply took to reach you.  It was
>originally mailed out on May 11, and again on May 16.  However, due to an
>email glitch, they were "lost in cyberspace".  I am pleased to be able to
>post it once again.  Thank you for your understanding. RWR~
>
>(begin message) - 11May99
>First, let me say I do agree with much of what Mr. Mettler's position
>dictates.  Microsoft should probably be broken up.  How severely, however,
>is mostly where we are disagreeing.  I find it also sadly accurate that
>there are many small software developers working literally for free just to
>get their software on the market.  An absolute travesty, in my opinion.
>
>I'm not quite sure of the "proper" way to quote and reply to a "quote &
>reply", so bear with me if I stretch the boundaries of acceptable electronic
>rebuttal; I promise to do the best I can.
>R. Reese~
>
>>-----Original Message-----
>>From: antitrust@essential.org [mailto:antitrust@essential.org]On Behalf
>>Of Lewis A. Mettler
>>Sent: Saturday, May 08, 1999 2:18 PM
>>To: Multiple recipients of list ANTITRUST
>>Subject: Re: Alternative MS solutions - comments on observations by Mr.
>>Reese
>>
>>Robert Reese wrote:
>>>
>>> If my definition of "Essential Facility" is correct, it means
>>> that everyone has the right to obtain the "Essential Facility".
>
>>> If the operating system is considered an essential facility,
>>> Microsoft can only charge a very slight fee for it.  This would
>>> force the opening of the OS source code and programming
>>> interfaces (APIs).  No one would have a competitive advantage
>>> if equal access to the OS is standard.  Better yet, force all
>>> "essential facility" operating systems to be released for free,
>>> or, at most, for cost plus a reasonable margin like the power
>>> companies have to do.
>>
>>I think the observation to be made is everyone can always get
>>access to essential facilities when provided by a monopolist.
>>The only question is who sets the price and terms.  If anyone
>>insists upon using any facility owned by someone else without them
>>setting the price and terms, it takes both a monopoly and government
>>regulation.
>
>As far as I know, everything that has been declared an essential facility
>was done so to prevent unfair monopolistic practices; however, it is also
>done to regulate utilities essential to the welfare of the country, hence
>the term essential facility.  There have been and continue to be monopolies
>that have total control over a market or a product.  Due to the current
>necessity of a Windows-based operating system to ensure the continued
>operation of much of this country, nay- the world, it seems appropriate to
>strip Microsoft of its core business - the operating system.  This would not
>prevent an independent standards board from adopting it.  In fact, it would
>actually hand it over to whomever or whatever was fit to oversee it
>properly.
>
>If you doubt the necessity of a Windows-based operating system, try this
>exercise.  According to the EULA, Microsoft has the right to legally
>withdraw a license.  Now picture this... Microsoft decided that it has lost,
>but before being destroyed its leaders employ a M.A.D. tactic.  This
>M.utually A.ssured D.estruction consists of simply declaring all OS EULAs
>withdrawn.  No one with a Microsoft OS license can now legally continue to
>use the operating system.  Those that do are subject to a lawsuit.
>Microsoft is now out of the operating system business, and into the lawsuit
>business.  Thankfully, Microsoft lawyers leave much to be desired, as
>evidenced by their humorous stumbles in the trial.
>
>>My preference is to solve the problem not regulate it.  And, I
>>might add that the court system is the least capable system we have
>>to regulate anything.
>
>I do fully agree.
>
>>The problem with opening up the source code and APIs is simply that it
>>does little or nothing to solve the basic problem of the monopoly.  For
>>companies that want to write software for the windows platform, such a
>>move might help them.  But, that effort helps Linux, OS/2, BeOS and
>>Apple very little in their effort to compete with the OS monopoly.
>>
>>Personally, I have absolutely no interest in access to any Microsoft
>>technology.  But, I insist upon a fair and competitive marketplace for
>>all operating systems and applications.  Opening up the source code for
>>Windows does not help BeOS compete in the OS marketplace.
>>
>
>Splintering the MS OS will put a halt on all compatible software
>development.  Billions of dollars will be spent with little possibility of
>return on investment.  The stocks will fall, and while current software
>products are more than adequate to accomplish anything customers need to do,
>there will be little forward movement in the inevitable confusion and chaos
>that would result in such an abrupt change in the industry.  It is a
>Veritable train wreck waiting to happen.
>
>Unfortunately, it has taken several years for this to occur, and a fast fix
>will cause more problems than it solves.  The answer is to force a 180*
>turnaround of the situation, and let the industry heal itself slowly and
>completely.
>
>>>
>>> Java would have made an excellent operating system, by the way.  Any
>>> application would run on any machine containing a virtual
>>machine for the
>>> app's platform.  This is probably what truly scared
>>Microsoft.  Software
>>> vendors could make java-native programs, bypassing the MS
>>operating system
>>> altogether, or convert existing MSOS-based applications run on Java.
>>> Unfortunately, between Sun and MS, this opportunity has been
>>destroyed.
>>> Java is still around, but is mortally wounded.
>>
>>An operating system just runs programs.  The fallacy is that
>>the OS must
>>also provide all APIs used by applications.  That is not a primary
>>function of an OS at all.  GUIs can do that.  Runtime systems such as
>>Java can do that via Virtual Machines.  Even browsers can do
>>that.  This
>>is the threat that Microsoft perceived when they set out to ruin both
>>the Netscape and Sun products.  Microsoft only wants applications to be
>>dependent upon their operating system and only wants their own company
>>to write them all. (Any monopolist would want that.)
>>
>>Java is not dead.  Java is not the last of its kind either.  When you
>>see the number of applications that simply run in browsers
>>regardless of
>>the system being used, you realize that the day when all applications
>>must be written for a specific OS is past.  At least it will past if
>>Microsoft is prevented from flagrant violations of antitrust and unfair
>>competition laws.
>
>Java, if not dead, is relegated to that pile of great ideas that didn't
>work, much like your aforementioned BeOS operating system.
>
>
>>Personally, I think that if the monopoly power of Microsoft is
>>eliminated you will see a 10 fold increase in new applications,
>>operating systems and run-time environments.  The question is whether
>>you really want superior technology to have an fair opportunity or
>>whether you just one company to dictate to the industry what technology
>>it must use.
>>
>>>
>>> I can understand Rick Dahlgren's position as it relates to the
>>> telecommunications industry.  Interestingly, AT&T and AOL
>>pose greater
>>> threats to him than does Microsoft, but it does help to get
>>unusual insights
>>> such as Rick's in these discussions.  He has brought up a lot
>>of stuff I have
>>> not seen anywhere or thought of.  Unfortunately, I find Mr. Mettler's
>>> suggestion to basically shatter Microsoft into dozens of
>>insignificant parts
>>> a bit much.
>>
>>Do you want to solve the problem or not?  Breaking up Microsoft along
>>product lines and multiple times within key lines such as the OS does
>>not harm the products nor consumers.  If those products are any good at
>>all, then having real price competition for those products can only
>>benefit the consumer. Forcing all consumers to reimburse Microsoft
>>Corporation half a billion for R&D on IE (plus a tidy profit) directly
>>harms all consumers today in the pocketbook.  I have estimated that up
>>to 70% of the retail cost to consumers for Windows 98 is directly
>>attributable to IE.  Bit high, you say?  Perhaps.  But, what else did
>>Microsoft research and develop that showed up in Windows 98 anyway?  IE
>>ran half a billion in R&D. And, it was a guaranteed forced sale to
>>hundreds of millions of customers.  A monkey could make that investment
>>decision.
>
>Absolutely right about that captured consumer base.  This is the crux of the
>DOJ's case as a matter of fact.
>
>>No company has a right to own a monopoly.  At times a monopoly or
>>franchise may have some merit.  Building the railroads in this country
>>is a good example.  Perhaps building the original phone network is
>>another.  But, those are examples where major capital requirements are
>>necessary and future protected markets may be required.
>
>A monopoly (for some unknown reason) is NOT illegal.  They also, as you
>illustrate so eloquently, can accomplish a great deal of good; primarily
>when building essential facilities such as railroads, telephone networks,
>power distribution companies, etc.
>
>>The computer software industry has no such requirements whatsoever.
>>Linux proves that today.
>
>True, a large capital investment may not be required.  But that cost is
>offset by the amount of time and man-hours required to create such a complex
>system.  Linux has been around since 1993, and has had millions of people
>working on it for much of that time.  Microsoft has had millions of dollars,
>and hundreds of simultaneous employees working on its many operating systems
>for more than a decade.  Unix has had a couple of decades with dedicated and
>knowledgeable followers.  No matter who or what brings a new OS to market, a
>substantial investment in either monies or man-hours will be required.
>>
>>> His suggestion for splitting Microsoft vertically and
>>> horizontally IS valid though; the computer industry is itself both a
>>> vertical and horizontal industry, making it fairly unique.
>>In fact, I
>>> cannot think of any other industry so widely dispersed.  Mr.
>>Mettler's
>>> proposition does not take into account the one really good
>>thing Microsoft
>>> has done for the industry, which is finally force the
>>individual vendors to
>>> standardize around a platform, albeit a proprietary one.
>>
>>Well.  Not really.  Unix is not part of that standard.  Neither is
>>Apple.  Neither is Linux.  Neither is AS/400.  Neither is HP 3000 MPE.
>>Is there a benefit in having a single standard?  Perhaps.  But, we do
>>not even have it now.
>>
>>What would really benefit consumers is not an OS standard at all.  What
>>would benefit consumers is a middleware standard or better yet multiple
>>middlewear standards.  More than one Java, in other words.  We need a
>>JVM for all operating systems.  And, we need a browser platform for all
>>operating systems.  We absolutely do not need only one operating
>>system.   There are very good reasons why we have many different
>>operating systems.  And, there are many reasons why we should have
>>applications that can operate identically on all systems regardless of
>>the operating system.  Middleware has to solve the problem.  Java and
>>browsers offered to do that.  And, as is obvious, Microsoft
>>intentionally violated antitrust law in their effort to prevent
>>middleware solutions from gaining acceptance.  This was done by
>>attempting to fragment (sabotage) Java and dry upon any
>>revenue base for browsers.
>
>You are 100% correct about the middleware.  I stand corrected about a Java
>OS; this is what I was referring to.  Also, Microsoft was instrumental in
>"virtually" destroying Java; as was Sun's fanaticism over Java's control.
>Basically, what you are talking about is using an interpreter between the
>operating system and the software to run any software on any operating
>system.  First, that is essentially the functionality of a device driver.
>Secondly, it puts an undue strain on the system, forcing more memory and CPU
>cycles to work harder than necessary UNLESS you use the proprietary OS with
>the software you are using.
>
>>> I, too, remember
>>> the days when it was virtually every company for itself.
>>One of the reasons
>>> DOS was so limiting was because it could only handle one
>>application at a
>>> time.  Imagine what it would be like if each software vendor
>>forced you to
>>> use only their version of an operating system to use their
>>product.  That is
>>> one nightmare that might actually occur if Mr. Mettler's
>>ideas are carried
>>> through.
>>
>>False.  In fact, your nightmare could not happen if Microsoft is split
>>as I have suggested.  6 or 8 companies would offer an operating system
>>persuant to a common standard.  Those companies (HP, IBM, Dell, Compaq,
>>Novell, etc.) do not even have a range of applications they could force
>>upon their customers.  Look at the Unix marketplace.  Most Unix
>>applications are not written by the Unix vendors at all.  Some are.
>>But, the majority are clearly not.
>>If applications are separated from the OS vendor, those applications
>>would more likely than not be offered either for multiple platforms or
>>be written using standards that run on multiple platforms.  This is
>>precisely the opposite of what is suggested here.
>
>I can imagine having 6 to 8 different operating systems on a multi-boot
>system so I can use my particular application to the best of its ability.
>There goes interoperability.  Little incentive would exist for developers to
>work towards cross-compatible products.  Instead, twenty small, vertical
>markets now run the industry.  Infighting will hamper innovation as badly as
>the MS monopoly did.  Additionally, it takes more resources and time to make
>multiple versions of the same software.  This is too burdensome for the
>average developer.  Big, bad Netscape did that on two separate occasions.
>First, they tried (and nearly succeeded) in porting Communicator to Java.
>Second, they had THREE versions being created simultaneously.  This,
>combined with the unfair competition from Microsoft, contributed
>significantly to Netscape's downfall.
>
>>>
>>> If the software industry is going to be interfered with, the
>>best way is to
>>> do it using the contracts the industry is based on, not the
>>software.  The
>>> only way Microsoft has maintained its hold is through contracts and
>>> licenses.  This is the easiest and most effective way of
>>handling Microsoft,
>>> and also of handling punitive damages.  Limit what can be in
>>the contractual
>>> agreements, and how they can be enforced.
>>
>>Contracts are worthless.  If one company has a monopoly or a dominant
>>position in a market, then maybe a contract can help keep
>>competitors at
>>bay.  But, removing the contract does little or nothing.  The reason is
>>very simple.  No contract is worth anything unless the company wishing
>>to enforce the terms has the necessary legal power (read this as a big
>>legal budget) to force an economic result that would not otherwise
>>occur.
>>
>>For example:  Cancel all Microsoft contracts today.  Void them all.
>>What changes?  Nothing, right?  Compaq still picks Windows.  HP still
>>picks NT.  Agreements and understandings do not need to be in writing
>>anyway.  Microsoft can simply draft a public wholesale price list that
>>will prevent any meaningful competition in the OS market for many years
>>to come.  Nobody even needs to sign it.  It is a monopoly, remember.  A
>>monopoly simply means that the holder thereof sets all terms and prices
>>or no business is conducted.  Written contracts just do not matter.
>>
>>This is why the "conduct" type of remedies are worthless in this case.
>>With monopoly power, you can be a nice guy and still win all the
>>business.  If a company like Netscape comes along, the monopolist just
>>makes that product a bundled feature of the monopoly product and that
>>competitor is out of business just like Netscape.
>
>Contracts and copyrights are the only devices that hold ISVs and OEMs to
>Microsoft's iron grasp.  Otherwise, vendors could do what they wish.  The
>only way these contracts and copyrights can be enforced is through legal
>action. If legal action is prohibitive, then ISVs and OEMs would have much
>greater flexibility to do as they wish.  Ask any ISV or OEM why they don't
>offer a non-IE Windows or even another operating system on their machines.
>It is only recently a combined reason of DOJ v. Microsoft and Linux's
>popularity have some large OEMs declared the availability of Linux on a
>machine.
>
>>>
>>> Perhaps banning software licensing completely is the way to
>>go.  Outright
>>> ownership of the application (but not the code) is best for
>>the consumer
>>> anyway.
>>
>>Personally, I do not see any difference here for the consumer.
>>
>>> Copyright protection is designed to prevent illegal copying and
>>> distribution already, so why do we need a license?
>>Declaring the bad ones
>>> void, cutting out the violating clauses from contracts, and
>>gutting the
>>> EULAs will cobble Microsoft as well as any other software
>>company gaining an
>>> anti-competitive foothold.  I'll bet forcing Microsoft to fulfill its
>>> contractual agreement to refund unused operating systems would be an
>>> eye-opener for them as well!
>>
>>Well.  I would be glad to force all citizens of this county to pay me
>>for 1 hour of legal time.  Anyone wishing a rebate can make an
>>application for a mail in rebate.  But, the initial charge
>>goes right on
>>your credit card each time you buy a car, rent an apartment, buy a home
>>or sign any contract.
>
>Legal authority is the only thing that has boundaries in an industry that
>can perfectly reproduce the industry sells.  This is not a service industry
>nor is it a manufacturing industry.  Services are paid for because it is not
>possible or not desirable to perform the task yourself.  Clearly, while
>software is purely a service, the software industry makes its money from
>allowing the use of the software rather than on the physically manufactured
>media the software is stored.  (True, that is the realm of the hardware
>industry, but that is not important at the moment.)
>
>>> If the contractual and
>>> licensing aspect is done correctly, this will inhibit any
>>long-term problems
>>> as well by preventing non-competitive agreements to be made at all.
>>
>>If you really want to regulate the computer software industry more
>>tightly than any other we have, I suppose you could do that.  But, the
>>courts are not capable of doing that.  There would have to be a new
>>commission, the CTC (Computer Trade Commission) to approve and regulate
>>all computer software contracts.
>>
>>I, for one, do not want a "regulated" industry.  I do want a fair and
>>competitive one.
>
>I concur.  It isn't regulation I'm interested in aside from the initial
>defanging of Microsoft.  However, the true unfairness today is with
>unscrupulous and heavy-handed tactics used against consumers by the software
>companies.  There is little legal recourse for someone that either has to
>abide by the EULA or go out of business.  I cannot recall where, but there
>was a story in one of the industry magazines awhile back that reported that
>the EULA for a software product explicitly prevented any "unfavorable" press
>or other opinions to be expressed in regards to the quality of the program.
>An extreme example, but with the current power of the EULA, there is great
>danger in the possibilies of forcing a contract on someone.  It used to void
>a contract if it was agreed upon under duress.  Is it any different now?
>
>While the severely lopsided practices these EULAs mirror those flagrantly
>oppressive violations Microsoft has committed, they are a subject for
>another debate.
>
>In the end, Mr. Mettler, what would happen if any judgment you or your
>client received was not enforceable?  Therein lies the power of cutting
>Microsoft's legal throat.
>
>Earnestly awaiting the reply,  ; )
>Robert Reese~
>robert.reese@mindspring.com
>
>You can't strengthen the weak by weakening the strong. - Unknown