Subject: Re: www.oreilly.com -- Tangled Webs: What Gives Them the Right?
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Mon, 29 Nov 1999 14:24:25 +0900 (JST)

I seem to have prematurely sent a reply to this.  If so, sorry (but
maybe it only went to Tim?)

>>>>> "Tim" == Tim O'Reilly <tim@oreilly.com> writes:

    Tim> "Stephen J. Turnbull" wrote:
    >> The analogy is bogus, and the article is full of half-truths.
    >> Microsoft Corporate Communications would be proud.

    Tim> I'm not quite sure I see why MS would like this analogy.

Not the analogy, the FUD.

    >> The solution Romero proposes may be the right one, for all I
    >> know.  I'm just sick of this analogy, and basing policy on it
    >> will make the whole industry sick too.

    Tim> Hmmm...  I'd love to hear details of why you think so.

I've done that at length in this forum already, I thought I'd spare
people.  Since you ask, here are a few of them.  I'll try to avoid
points made by others.

    Tim> The article was light on substance to be sure, but the points
    Tim> it made seem to be good ones to a layman.

Not intending to insult present company, but the analogy made is
designed to appeal to the lay software users' sense of greed.  It is
not designed to lay bare the interesting features of 99.44% pure
intellectual property.

    Tim> Does any other industry use shrinkwrap licenses?

Yours does, in a sense.  But since the content is pretty much
specified by law, you don't even bother to include a copy inside the
shrinkwrap.  (Unfair, you say?  Consider: none of my colleagues know
what fair use means; they all always think it applies to their
intended use, whatever that might be.  They're all professional
authors, and fair-minded chaps; surely they should be able to judge.
No?)  Don't you think you should?

    Tim> Does any other industry tell you you'll be violating your
    Tim> license to use the product if you add in other components?

Yes.  The rent-a-car industry.

More apropos, the telephone company did exactly this for quite a long
time, and still does in many countries.  Now you are still required to
use products which are certified for use AFAIK, although the
certification is now done independently.  Or maybe you are liable to
damage to the phone system if you attach uncertified equipment to it.

Given the fragility of the Windows registry, I think MS is quite
likely technically justified in doing this.  Far more than AT&T with
its "withstand a nuclear blast" Western Electric products ;-) ever
was.  Dunno about legality, though; I think AT&T was only able to do
that because of its special franchise monopoly.  I'm not sure if that
works the same way with the franchise monopolies granted wholesale
through the IP laws; in fact, I doubt it.

The normal practice in hardware, however, is to create an interface
which is one of many feasible ones, and then patent it.  Viola!
Interface "copyright."  NB: it wasn't the xerography patent which kept
Xerox the uncontested market leader for so long after that patent
expired.

    Tim> Microsoft does this, and does it quite effectively in terms
    Tim> of discouraging consumer exploration of alternatives.

Does MS say it violates your license?  Or that it voids any warranty?
(I don't use MS products, I have no idea what they say.)  If the
latter, this is true of all industries.  Look at the seals on your
hard disk drive.

If the former, I don't much like it.  Nor will the Justice Department.
And you'd have precedent on your side (there was a court case in 1956,
IIRC it ended in a consent decree in which IBM and other computer
manufacturers basically agreed (via amicus brief) not to oppose a
regulation that prohibited them from making telephone equipment and
AT&T agreed to stay out of computers).  A consent decree is not the
same as a decision; the point is that AT&T was almost certainly going
to lose that case without the consent decree, and manufacture of
telephone equipment (including things that AT&T did not make and
wasn't planning to) would have been thrown open to competition 20
years before it actually was.  (And computers, too.)

So I suspect Microsoft doesn't actually do that, at least not where
they think the DOJ might be listening.  I'd have to book up on the
testimony in the case, though.  MS was pretty dumb about thinking they 
could get away with illegal or at best very dubious behavior.

Thus this AFAIK is a red herring.  It is probably not possible to
legally use the license to prohibit users from adding software (as
long as it doesn't involve reverse engineering, which is presumably
why MS was doing the technically totally idiotic integration of the
browser into the OS, and the not much more sensible integration of
window manager and windowing system[1] into the OS).  It looks very
much like actionable restraint of trade to me, and in fact I suspect
if you bone up on Judge Jackson's decision you'll see that Microsoft
has just gotten "actioned" on that basis among others.

    Tim> So I'd love to hear more details of why you think this is
    Tim> totally off base.

1.  Because cars and programs are entirely different kinds of
products, with entirely different economics, even for their IP.
Anybody who can click a mouse can become a freelance MS Windows NT
Server distributor.  And make enough money to post bail and start up
again in a different jurisdiction.  Leaving the $1000 computer to be
confiscated under RICO is far less painful than having your
$10,000,000 carburetor factory confiscated by the police (or even
simply enjoined from producing).

2.  To the extent that MS is relying on copyright to protect its
intellectual property, analogies to patents are completely wrong.
Toyota's patented intellectual property is fully protected (subject to
legal friction) no matter what you do under the hood.  MS's
intellectual property has very little useful protection if reverse
engineering the specs of the internal interfaces is legal.  Once you
understand how the thing works, producing a functional duplicate is
much easier.  As Stallman points out in his solicitation for GNU
projects, you just use different algorithms, and then you're
definitely not copying; poof, no copyright violation.

3.  The shrink-wrap industry is only a small part of the point.  Eg,
I'd like to know when Romero last bought a car.  My car is 7 years old
and doesn't have a carburetor.  It has computer-controlled fuel
injection, it is in fact a Toyota, and I bet Toyota would not be
pleased, and would express its displeasure in court if necessary, were
I to publish a disassembly listing of the ROMs.  The point being that
hardware these days is rapidly being partially replaced by firmware,
and those "hardware" companies are just as lawsuit happy as Microsoft,
and they don't have shrinkwrap licenses.

This is now a self-referential analogy, as the analogized object
(software) is now embedded as a subplot in the analogy.

BTW: It is probably _not_ a good idea to create special legislation to
fit the shrinkwrap industry; what used to be shrinkwrap could easily
be embedded.  Eg, Japanese computer shops still sell huge numbers of
dedicated wordprocessors; MS hasn't bothered to enter that market, but
if you restrict MS's ability to protect Word with copyright, it
wouldn't be all that expensive for them to augment CD-ROMs and put the
guts and some encryption and authentication code into a "Word host"
which plugs into the PCI bus.  It is now an embedded system and no
shrinkwrap license need be used---you could probably patent it.  So
you need to cover non-shrinkwrap products with the same IP terms.

4.  If you take the analogy seriously, then you are going to have to
step carefully or you'll trap yourself into arguing that software
patents are the way to go.  The obvious alternative is no protection
for intellectual property of any kind, and I don't think you want to
go there, either.

I could go on.  Should I?


Footnotes: 
[1]  The browser and window manager do nothing but UI, so they don't
need to be efficient.  The windowing system probably doesn't need it,
X does fine AFAICT, but there might be some argument there.

-- 
University of Tsukuba                Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
Institute of Policy and Planning Sciences       Tel/fax: +81 (298) 53-5091
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