Subject: thoughts on Microsoft ruling: e pluribus unum?
From: Michael Tiemann <>
Date: 05 Nov 2002 12:09:30 -0500
05 Nov 2002 12:09:30 -0500
Many different people bring many different perspectives to the open
source community, and that's what makes it so exciting.  I'd like to
take the opportunity (and a few liberties) of sharing my thoughts on the
recent decision in the US vs. Microsoft remedy trial because I see this
ruling as an invitation to pursue a greater legal goal than taming a
monopolist.  That greater goal is the explicit and strong protection of
the creative commons based on a doctrine of public interest.

You may wonder (nay puzzle) at my choice of To:, CC:, and Bcc: lines. 
Let me explain myself this way: to me, the open-source-now-list,
inaugurated to support advocacy of free software and open source
solutions in education, is really more than that.  It is about free
software and open source advocacy in general.  The fsb list, inaugurated
to discuss and debate free software and open source solutions as the
basis of for-profit businesses, similar touches the larger questions of
what free software and open source enable beyond merely the P&L.  With
luck, these two lists, and others I've Bcc'd, should cover a fairly wide
range of people.

On the CC: line I have brazenly identified a number of people whose
writings and/or advocacy have been influential to me and to many I
know.  I seek not to distract them, nor to snub others not listed, but
to simply share my thoughts and identify them to others as potential
(but certainly not the only) inspiration for specific advocacy projects,
be they technical, commercial, legal, political, editorial, educational,
or otherwise.


P.S.  Please respect the reply-to: line I have included, directing
traffic to, unless you want to follow up
in private (in which case, you're on your own).

As the pundits and the press debate and discuss Judge Kollar-Kotelly's
ruling in the Microsoft case, let's not lose sight of the larger
picture, which is that open source is out-competing the monopolist in
every way that customers care about: performance, innovation,
security, and cost.  As documented by David Bank in his book "Breaking
Windows," Microsoft's proprietary, protect-the-monopoly-at-all-costs
strategy has done more to injure Microsoft than any ruling the court
could have handed down.  Microsoft's true battle is not the one they
fought in the courts, but the one they fight with themselves every
single day in Redmond: how much longer can they keep up their
appearance of dominance?

In the courts, Microsoft bitterly fought the notion of expanding the
scope of the remedies to cover Intel PC-compatible server systems,
claiming that they had only abused their monopoly on the desktop.
While the court did expand the scope, the real remedy has come from
the open source operating system Linux (aka GNU/Linux), which has
grown to represent nearly 30% of all new server systems shipped in
2002.  For the free-market economists and Darwinian technologists,
that's as it should be.  For Microsoft, it's a bitter defeat that lays
bare their vulnerability to a new paradigm of software development.
For the public, it's validation that innovation and customer choice
are not mutually exclusive, and that competition with accountability
can be achieved.

Also in the courts, Microsoft sought to show that their dominance of
the desktop market was a function of their R&D investment, the
integration of their technologies, and quite frankly, the lack of
commensurate spending by any competitor (open source or otherwise).
Since those proceedings, open source alternatives to the Microsoft
desktop are being considered, evaluated, and deployed in environments
ranging from schools and non-profits to commercial enterprises to
public offices and military commands.  This shift is due not to a
heavily litigated court order but to the natural competition that open
source has brought into the stifling environment of Microsoft's closed
Windows platform.  We, the open source community, need to encourage
and deliver to these alternative-seekers.

There are many answers to the question "where do we go from here?",
and the number of answers increases with every new member joining the
open source community, whether as developer, user, or commentator.
But we must also see the forest for the trees.  The Microsoft case was
specific, weighing behavior and consequences against laws and
precedents.  The ruling handed down was a ruling based on facts and
due process.  As we look to the future, we must ensure that the laws
and conventions that protected both Microsoft's stated desire to
innovate as well as the public's interest are not corrupted to
prohibit the open source community from enjoying similar opportunities
to innovate and compete.  Indeed, if Microsoft's monopoly and abusive
behavior can be tolerated in the name of the public interest, then we
should demand that the public interest be similarly dominant when
considering questions of fair use, free access, and halting the
encroachment of patent and copyright into the creative commons.  We
must be vigilant, anticipating the ways in which code becomes law, and
diligent to ensure that the laws of the future maintain the premise
"with liberty and justice for all".  If the courts are content to let
Microsoft pursue their proprietary strategy to its logical conclusion,
let us take whatever steps are necessary to ensure that they also
protect the open source community in its desire to see its open-source
strategy fulfilled.