Subject: Re: the .NET battle ends
From: Ben_Tilly@trepp.com
Date: Fri, 21 Sep 2001 12:39:30 -0400


Tom Lord wrote:
> Three ideas are floating around on this list that are almost certainly
> wrong:
>
>    Wrong idea #1:
>
>    MS modified Passport because they were forced to capitulate.
>
One I had never considered because I see nothing forcing Microsoft to
capitulate.
>
>    Wrong idea #2:
>
>    MS is losing in some markets and just generally falling to
>    pieces.  They came out with an "open" .NET in an attempt to
>    avoid further antitrust prosecution, and to make nice with the
>    rest of the tech industry.  We should like .NET cause it gives
>    us a bunch of labor-saving specs to implement.
>
Sounds too much like an admission of defeat on their end.
>
>    Wrong idea #3:
>
>    SSSCA and similar legislative efforts are simply attacks on
>    Free and Open Source software.
>
If you are referring to what I said, I believe you missed my point.
I believe that the SSSCA is (among other things) Microsoft's overall
monopoly gameplan.  While we are in its projected blast, we are not
the only or even the most important target.  If Red Hat is a target,
then so are AOL, Oracle, Sun and Kodak.  And they make more money,
so they make bigger targets.
>
> Let's examine these:
>
> #1 Passport
> -----------
>
[snip common ground]

Absolutely agreed with the caveat that Passport may have been a bit
of a trial balloon.  They wanted to push the boundary a bit just to
see how far they can go.
>
> #2 .NET in General
> ------------------
>
> My suspicion about Passport is further supported by other aspects of
> .NET. [...]
>
> MS can take commerce implementors the message that they should adopt
> .NET technology because everyone likes it, and everyone is working on
> being interoperable with it.  At the same time, they can push on their
> own implementations to make competing nearly impossible, and
> interoperability shaky.

The SSSCA has provisions to make interoperability illegal.  If .NET is
a certified security measure, then moving data from .NET to other
platforms involves removing or altering a certified security measure
which is illegal.

[...]
> The contemporary Free Software movement started with an emphasis on a
> classical Unix software architecture -- a cleaned up software tools
> approach: why don't we find leadership with a strong corresponding
> technical orientation among the larger FSBs?  For example, why don't
> we see a strong push and advocacy for technologies that are *not*
> inter-dependent -- instead of what we usually see: projects and
> advocacy to make barely related components *more* inter-dependent?  We
> can build better products with less effort by returning to the spirit
> of our tech roots -- no grand schemes required.  I can't resist
> cruelly revising a recent slogan: Let's make "unix", not "suck".
>
I think this is an unfair criticism.  While there are lots of projects
out there that create monoliths, there are also a lot of successful
projects that keep to the spirit of lots of modular components that
play well together.  Examples range from the design of the Linux
kernel to the overall layout of CPAN.
>
>
> #3 SSSCA is an Anti-Open Source Conspiracy
> ------------------------------------------
>
> No such conspiracy theory is necessary to explain legislative attempts
> such as SSSCA.  Fighting law like SSSCA because it is a threat to open
> source software is too narrow an agenda -- just like fighting Passport
> because of the specific auth. technology chosen.

I don't like the SSSCA because it is bad law.  Some of the features
that I most dislike have nothing to do with free software.  For
instance after making most free software illegal, what does it matter
if some company (in all likelyhood Microsoft) gets free immunity from
anti-trust law?  That doesn't matter to Red Hat who is nuked from the
start.  But it matters to companies like Kodak who don't care how the
content is protected, but want to get access to customers who are
using the infrastructure.  (I bring up Kodak's name because they are
on record as being a company targetted currently by Microsoft with
tactics that smack of anti-trust violations.)

> Recent legislation regarding protection mechanisms exists because,
> without it, copyright doctrine established prior to the digital age
> has to eventually be re-examined by the surpreme court, where, if the
> court is as literate, constitutionally faithful, and ethically
> concerned as they often appear to be, it stands a good chance of
> undergoing considerable constriction in ways that, for example, large
> music distributors are going to have to work hard to adjust to.  We
> can't count on the court going in that direction but they can't count
> on the court not going in that direction.

This is definitely a motivation for some of the companies involved.

> What appears to be happening is that large digital content
> distributors went first to their technical advisors and asked "What
> technology is necessary to most closely protect our established
> business models, in spite of the Internet and personal computers?" --
> they got some answers, including some advice about problems that
> technology can't help with.

I don't presume to know who approached who.  But I am positive that
Microsoft played a large part in the design of the bill, and Microsoft
stands to win big from it.

That Microsoft would be involved comes as no surprise.  After all it
has worked with content providers recently in attempts to protect
content.  In fact it would be more of a surprise if Microsoft had not
been talked with.

> Then they went to legal advisors and asked "How can the exclusive
> rights granted to us by congress prior to the digital age be extended
> to protect this technological approach -- to pick up where the
> technology itself leaves off?"  They got answers that are downright
> tyranical, anti-American, anti-Capitalist -- just plain nasty.  Some
> of those answers turned into law; others might or might not be close
> behind.  (For all we know, these companies are satisfied with the
> DMCA and SSSCA is yet another diversion tactic.)

I doubt that the DMCA is sufficient for them.  As you note above, it
depends on the grant of power that Congress has for copyright.  This
grant comes with stated limitations that provide grounds for
overturning the DMCA on Constitutional grounds.

The SSSCA by contrast appears designed to fall under Congress'
authority under the Commerce Clause.  In a private discussion with an
EFF lawyer, he said that it might be challenged under the theory that
the grants of power to Congress also carry implicit restrictions.
IANAL, but it looks like a far harder case to say that you cannot do
something allowed under one grant of power because another grant of
power had a limitation.  It seems particularly hard to make that
case when the SSSCA addresses issues (eg security) that are unrelated
to intellectual property.

An incidental note.  In the last century there has been a dramatic
increase in the powers of the US federal government.  The legal
underpinning of most of that comes from increasingly broad
interpretations of what Congress can do under the Commerce Clause.

The upshot is that even though IANAL, I suspect that the SSSCA would be
much harder to overturn on Constitutional grounds than the DMCA.

> Simply fighting this legislation because it is icky is a good idea,
> but not enough.  Congress has a mandate to provide law that promotes
> progress in science and the useful arts.  If you like freedom in
> general, start implementing businesses that support that progress
> without requiring people to not trade MP3 files.

Free software businesses by definition increase the publically
available base of software people can use, learn from, and build on.
This is progress in "science and the useful arts" as it was meant by
Jefferson et al.

Cheers,
Ben