Subject: Re: the .NET battle ends
From: Ben_Tilly@trepp.com
Date: Mon, 24 Sep 2001 14:47:54 -0400


Stephen J. Turnbull wrote:
> >>>>> "Ben" == Ben Tilly <Ben_Tilly@trepp.com> writes:
>
>     >> Of course they're not going to climb in bed with rms.  Since
>     >> that's apparently the way you define "cede the principle" I
>     >> conclude you're as absolutist as Gates is.
>
>     Ben> I think you are caricaturing me as much as you were just
>     Ben> caricaturing Gates.
>
> I didn't intend caricaturing Gates.  True, he has accepted certain
> specific practices, under certain circumstances, of open source.  What
> I believe him to be absolutist about is belief in the efficacy of
> intellectual property as an instrument in the efficient creation of
> economic value in his industry.  I also believe him to be absolutist
> about the primacy of economically definable values.
>
I don't believe him to be absolutist about the first statement.

I believe that he is absolutist about his desire to have Microsoft be
as successful as he can make it be.  This is a fairly reasonable goal
for someone in his position.  Indeed if he did not think this way,
Microsoft would not have achieved its current position.

However what I dislike about him is his willingness to be dishonest in
this cause.  By being dishonest I mean that he lies, and encourages
those around him to lie, whenever he thinks that advances Microsoft's
position.  This dishonesty can go from deliberate misinterpretations
of people's positions (eg saying that he was releasing a broken
version of Windows 95 because it was the the only way to fully
comply with the court's order) to outright lies under oath (eg faked
videos in the anti-trust trial).

All other statements that he makes have to be understood within this
context.  He doesn't present either the facts as he thinks them to be
or his position honestly.  Instead he presents the position that he
thinks will advance his cause.  If that means telling everyone that
open source will threaten your company's intellectual property, he
will say with a straight face that it does.  If that means telling
people that intellectual property laws increase GNP, he will say that
as well.

> As you should recall, I have on a number of occasions played devil's
> advocate on the software patents issue.  I now believe that on balance
> the economics favors restriction of patents in general, certainly
> pending reform, and the abolition of software/business method patents.
> Of course, for me what nails SPs to the wall are the non-economic
> issues: intellectual freedom and opportunity for small and medium
> sized FSBs.

I agree.

> But if I exclusively thought in terms of the kind of resources that
> Gates has to command I might change my mind about the economics.  So I
> can see where he's coming from on intellectual property.  And I know
> he and I disagree about the primacy of economic values, certainly when
> they are aggregated into "GNP".  But I can comprehend his position
> there, as well.

I disagree.

I don't know, and don't think anyone outside of a few friends can
know, what Bill Gates really thinks about the overall economic effects
of intellectual property law.  What is dead certain is that he thinks
that intellectual property laws are good for Microsoft's economics.  I
think we will all agree that that belief is trivial to justify.  And
given that, he has every reason to find defences for intellectual
property laws that convince as many people as possible.  And his range
of tactics goes from using emotionally laden terms like "piracy" to
plausible macro-economic arguments.

> So to my mind, any time he makes a concession about open source
> strategies it is a significant event.  It makes it harder to support
> his world view, and impose it on others.  It opens him to analogical
> arguments that non-technical people (q.v.) can understand: "Technology
> Y is like technology X.  So if open source/independently defined
> standards are appropriate for X, aren't they just as appropriate for
> Y?"  Etc., etc.  And claiming that it wasn't a concession detracts
> from our credibility with those non-technical people---but that's
> _your_ point.

Unless I can see how to make the arguments that you talk about and
make them stick, I don't consider it a concession.  And so it is
with this.  Arguing by bad analogy just makes us look bad.  For
instance try to formulate an argument of the above form for
documenting their standard for Exchange which withstands the
following response:

  We at Microsoft believe that if you are going to create a Internet
  standard that others will use, that it is important to document how
  it works and allow others to write to it.  That is what we are
  doing with .NET, that is what we did with SOAP, and that is what we
  will continue to do when it makes sense.

  However it is completely inappropriate to force us, or any company,
  to forgo intellectual property we have developed.  Not every product
  can or should be made into an open standard.  For instance
  Exchange/Outlook has emerged as the most featureful collaboration
  tool in existence largely because of the tight integration between
  our product lines.  Had we been forced in the past to fix what we
  had as a standard which would not change, then we could not have
  developed it into the world-class application that it now is.  And
  if we were forced to freeze development now, then we could not
  continue to improve it to the benefit of our customers.

  So while we continue to participate in open standards processes, it
  is imperative that we are able to choose which technologies should
  be open.  And that is why we at Microsoft try to help people
  understand the gulf between so-called open source licenses that
  undermine your intellectual property, and those which do not...

You see, there is nothing in Microsoft's action which is out of line
with past actions, and past positions taken.  Microsoft never has said
that it is wrong to give away intellectual property.

> As for caricaturing you, a little, I guess.  But consider your
> response:
>
>     Ben> And so I don't consider moves made on his part in accord with
>     Ben> existing strategies and principles to be major concessions on
>     Ben> his part.
>
> Not even if they were contingent on getting caught trying to pull a
> fast one, evidently.

Is it obvious that they were?  I am not sure that an easily understood
case can be made which shows that.

>     Ben> If he made moves indicating that Microsoft will actually make
>     Ben> an attempt to avoid future anti-trust violations, I would
>     Ben> consider that a concession.  Is it too much to ask that he
>     Ben> make an honest attempt to operate inside of the (existing)
>     Ben> laws?  Apparently so...
>
> I don't think it's too much for the Justice Department, the courts,
> and the public to ask, not at all.  But in fact that is not the way
> the game is played by the "big boys."  You're applying a strict enough
> standard to Microsoft that you would have to convict the rest of the
> Fortune 500.  All of the big companies use the "what we can get away
> with" test to judge "honest compliance."[1]

What about Intel?

OK, they are an extreme example of a company that goes out of its way
to be compliant.  But I maintain that while there are many Fortune 500
companies that push the boundaries, I don't know of any which do it as
aggressively as Microsoft does.

> I think it _is_ absolutist to judge "real concession" on the basis of
> asking Gates to behave in ways that none of his peers would.  I doubt
> it is possible to make common cause with Microsoft, but it is still
> important to understand its motivations if we are to find ways to deal
> with it effectively.  And in order to gain credibility in the
> political arena.
>
How many of Microsoft's peers lie as blatantly or frequently in court
as Microsoft did?

Besides which I didn't ask Gates to behave in ways that none of his
peers would.  Instead I said that I would like to see moves indicating
that Microsoft will make an attempt.  I didn't say that I even wanted
to see it be a strong or sincere attempt.  It would qualify for them
to give a public statement that Microsoft regrets recent court events,
and is taking measures to avoid being embroiled in future anti-trust
action.

Is *that* too much to ask?  I am not asking for Microsoft to admit
that it did wrong, or even to not get into future problems.  I am
merely asking for some sign that they intend to modify their
behaviour to avoid winding up in court again?  But do we see that?
Not that I can see.  Instead we are seeing a Microsoft that is
rushing aggressively towards further non-compliance while dodging
questions about what steps they have taken towards being able to
comply with adverse court decisions.

> [...]
>
>     >> >> What else is new?
>
>     Ben> For Microsoft?  Not much.
>
>     >> No, for non-technical people.  After all, aren't they the same
>     >> ones who think that Microsoft products actually make their
>     >> lives easier and help them accomplish the work _they_ need to
>     >> do?
>
>     Ben> Talk to an analyst about how Excel compares
>
> I know you've done that; although I think you're paranoid, I don't
> think you're afraid to test our prejudices against reality, and
> discard them when they don't match.

As you say, I try to test my theories against reality.  As you also
say, my beliefs would strike many as paranoid.  However I don't think
that I am unreasonably so.

What are my beliefs in this matter?  Well I believe that Bill Gates
wants Microsoft to be the biggest and most successful company that he
can make it.  I believe that he is focused on this goal, to the
exclusion of competing concerns such as being seen as a decent human
being.  Furthermore I believe that we can tell a lot about people by
their random judgements of others. (*)  Therefore the degree of
paranoia that Microsoft reveals about their competitors strongly
suggests that that is how they would act.  And finally I believe that
Bill Gates has tried to embed these attitudes throughout Microsoft.

Now with this background I look at the SSSCA.  It is a bill that was
introduced by companies which Microsoft has extensive dealings with,
and it has a lot of very odd provisions (eg the anti-trust exemption)
that look very customized to Microsoft's needs.  When I read it
carefully I see that it mandates an infrastructure with a strange
resemblance to .NET, and has provisions that are very hard to fit into
competing products.

Given my beliefs about Microsoft, I can see the ways in which they are
likely to take advantage of it.  Given my beliefs about Microsoft, I
can easily believe that they would be behind something like this.
Given who its supporters are, I cannot say that they aren't.  However
the lack of other companies who I see benefiting as strongly or
directly as I think Microsoft would is itself evidence that they had a
hand in it.  But not, of course, proof.

But whether it was planned or fortuitous coincidence, there is no way
that I can see Microsoft passing up an opportunity like this if it is
presented to them.  Even if Bill Gates doesn't see it, enough people
around him are smart enough that I cannot see them missing the chance.

> But you missed my point.  The non-technical people are right about the
> fact that Excel makes gnumeric look like a hobbyist's programming
> project.  They may very well be right about the balance of benefit and
> risk in their lives posed by Passport, Hailstorm, etc, too.

I may well have missed your point.  I thought you had the commonly
held belief among free software supporters that Microsoft software is
obviously inferior and should always be discounted on its merits.  I
try to argue against this prejudice because Microsoft software is not
always inferior.  They are a large company full of motivated and
intelligent people.  Some of their stuff is very good, and it is a
mistake to not appreciate that.

However in general I think that non-technical users do not appreciate
that Microsoft's aim is to achieve the maximum sustainable profit for
the minimum sustained effort.  (How paranoid I am about Microsoft!  I
think that they are run by a bunch of unabashed capitalists!  *ahem*)
As you well know, the most efficient way to do that is to achieve a
monopoly and then extract monopoly rent.  Indeed Microsoft follows
exactly that strategy whenever possible.  And their success in that
only winds up being good for them in the long-run.

> For this issue, I'm afraid we are going to have to engage in special
> interest politics, and ignore the non-technical people except for
> explaining how our proposals won't hurt a bit.  Preferably making
> common cause with technical people who already have well-paid
> lobbyists in place....

I disagree.  I believe that when faced with the prospect of seeing
Microsoft get a monopoly backed up by Uncle Sam, with all of the usual
protections against monopolistic behaviour removed, it is in the
interest of everyone other than Microsoft that they be stopped.  What
is important is to make people aware of exactly what could happen, and
what it would mean to them if it did happen.

They sometimes are beneficial for consumers.  They sometimes are not.
But, like capitalism as a whole, they are most likely to *be* good for
consumers when they have to compete in a fair market.  Of course from
their point of view, competing in a fair market means putting out a lot
more work for a lot smaller profit margin and a much greater risk of
failure.  Little wonder then that Microsoft does everything in its
power to avoid facing a level playing ground!

> Footnotes:
> [1]  In the legal environment post-Sherman Act, it's arguable that
> it's the only sensible strategy for big companies.  In practice, the
> distinction between "holding a monopoly" (legal) and "monopolization"
> (not) is made on a case-by-case basis, although there are a few "per
> se" practices defined.

While the boundaries are unclear, few companies are as aggressive
about pushing boundaries as Microsoft is.

Cheers,
Ben

(*) If you can learn about people from their opinions about others,
what do my opinions say about me?  I maintain that I make an effort to
understand others on their own terms, as best as I understand them.