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11th November 2001

DOJ V. MICROSOFT - PROPOSED REMEDIES

Brian Grainger


 

The news media reported a week ago that Microsoft had settled with the DOJ concerning the proposed remedies for being found guilty of abusing their monopoly position. However, most reports do not say fully what has been agreed.

What I have done is to go through the legal document and try to summarise it and turn it into layman's language so that you can make your own decision as to how leniently Microsoft have got off.

I have taken the Proposed Remedies as they first appeared. Since that time some minor adjustments have been made to appease some States involved in the litigation but having to translate from legalese once is bad enough!

My own view is that the remedies are geared to stopping Microsoft doing for the next 5 years what they have been found guilty of doing in the past. There are no punishment remedies. Whether you agree with this or not is up to you. Personally, I think it is best from a user point of view. Breaking up Microsoft was never going to help users. If there is something I would have liked to have seen it would have been opening up the whole source code to versions of Windows Microsoft no longer supports. In this way someone could step in and provide support and users could remain with their old version if they wanted. I appreciate that this is a personal viewpoint and I never saw it suggested by anyone during the trial.

At the moment, of the original 18 States who brought the antitrust case with the DOJ, 6 States have refused to accept the proposed remedies. I suspect there will be intense pressure on them to accept in the long run but I guess we will have to watch the news on that one.

Here then is the summary.


Microsoft shall not retaliate against an OEM who promotes software that competes with Microsoft or ships a PC that includes a non-Microsoft operating system and will dual boot.


Windows to be distributed to OEMs with uniform licence agreements, terms and conditions with a cost schedule that is published on a web site accessible to the United States and OEMs.

The schedule may specify different costs for different language versions;

The schedule may specify reasonable volume discounts based upon the actual volume of licenses of any Windows Operating System Product

The schedule may include market development allowances, programs, or other discounts in connection with Windows Operating System Products, provided that such discounts are offered and available uniformly to all OEMs

Microsoft may establish one uniform discount schedule for the ten largest OEMs and a second uniform discount schedule for the eleventh through twentieth largest OEMs, where the size of the OEM is measured by volume of licenses


Microsoft shall not restrict any OEM from installing icons/shortcuts/menus to non-Microsoft software


Microsoft shall not restrict any OEM from automatically launching a Non-Microsoft alternative to any Microsoft software of similar functionality that would be launched automatically at that time.


Microsoft shall not restrict any OEM from offering users the option of launching other operating systems prior to the start of the Windows.


Microsoft shall not restrict any OEM from presenting in the initial boot sequence its own Internet Access Provider options provided the end user is returned to the initial boot sequence upon the conclusion of any such option.


Starting at Service Pack 1 for Windows XP or 12 months after the submission of this Final Judgment to the Court, whichever is earlier, Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and OEMs, any interoperability details (APIs, documentation, etc.) that are used by Microsoft software to interoperate with a Windows


Starting nine months after the submission of this proposed Final Judgment to the Court, Microsoft shall make available on reasonable and non-discriminatory terms for use by third parties, the Communications Protocol that is implemented on a Windows client computer, used to interoperate with Windows 2000 Server or successor server software.

Microsoft shall not retaliate against any ISV or IHV who promotes any software that competes with Microsoft.


Microsoft shall not enter into any agreement relating to Windows that favours an ISV who refrains from promoting any software that competes with Microsoft.


Microsoft shall not enter into any agreement relating to Windows that favours any IAP, ICP, ISV, IHV or OEM who promotes exclusively or in a fixed percentage, any Microsoft Software.


Microsoft shall not enter into any agreement with any IAP or ICP that gives a link to the IAP or ICP within Windows on the condition that the IAP or ICP refrains from promoting any software that competes with Microsoft.


Starting from the release of Service Pack 1 for Windows XP or 12 months after the submission of this Final Judgment to the Court, whichever is earlier, Microsoft shall:

Allow end users and OEMs to enable or remove access to each Microsoft Middleware Product.

Allow end users, OEMs and Non-Microsoft Middleware Products to invoke a Non-Microsoft Middleware Product in place of that Microsoft Middleware Product that Windows would otherwise launch.

Ensure that Windows does not (a) automatically alter an OEM’s configuration without first seeking confirmation from the user and (b) seek such confirmation from the end user for an automatic alteration of the OEM’s configuration for 14 days after the initial boot up of a new Personal Computer. Microsoft shall not alter the manner in which Windows automatically alters an OEM’s configuration of icons, shortcuts or menu entries other than in a new version of Windows.


Microsoft shall offer to license to ISVs, IHVs, IAPs, ICPs, and OEMs any intellectual property rights owned or licensable by Microsoft that are required to exercise any of the options provided to them under this Final Judgment


No provision of this Final Judgment shall:

Require Microsoft to disclose anything which would compromise the security of anti-piracy, anti-virus, software licensing, digital rights management, encryption or authentication systems, including without limitation, keys, authorization tokens or enforcement criteria

Require Microsoft to disclose any API, interface or other information related to any Microsoft product if lawfully directed not to do so by a governmental agency of competent jurisdiction.

Prevent Microsoft from refusing licenses of any API, Documentation or Communications Protocol related to anti-piracy systems, anti-virus technologies, license enforcement mechanisms, authentication/authorization security, or third party intellectual property protection mechanisms of any Microsoft product to any non bona fide person or entity.
(What is bona fide is defined more exactly in the legal documents)


ENFORCEMENT

Microsoft must allow access to the US government to monitor compliance.


Microsoft must allow a 3 person technical committee to work on site at Microsoft's expense to monitor employees, documents, source code, etc. to ensure compliance. There are provisos as to who can serve on the committee. They must report every 6 months while the judgement is in force.


Microsoft to employ an internal compliance officer to effect the compliance process.

 


TERMINATION

This Final Judgment will expire in 5 years.

If Microsoft is found to engage in systematic violations, the United States may apply to the Court for a one-time extension of this Final Judgment of up to 2 years, together with such other relief as the Court may deem appropriate.


 

 

 

 


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