Developers sceptical about Microsoft concessions

Microsoft says it wants an antitrust settlement, but is it offering anything of value?
Written by Mary Jo Foley, Senior Contributing Editor on

Developers and licensees are privately questioning Microsoft's claim that it is offering significant concessions in its antitrust settlement proposal to the US Department of Justice.

Primarily, developers said, Microsoft's alleged proposals -- to decouple Internet Explorer from Windows, allow third parties "open" access to the Windows source code, publish all of its Windows application programming interfaces (APIs) and provide a level Windows licensing fee for hardware makers -- all come too late and offer little real value.

A number of news reports, which cite people familiar with the substance of the ongoing DoJ-Microsoft settlement talks mediated by federal Judge Richard Posner, say Microsoft has put forth in a 10-page document these and other related settlement concessions. A Microsoft spokesman said officials declined to comment "in any way about mediation or the mediation process".

Several news organisations also reported earlier this week that Microsoft president Steve Ballmer told employees in a memo that the company had "put more on the table than the judicial process would ultimately provide, even if we lost the case".

Ballmer's claims that the company has gone as far as it is prepared to go in the hopes of settlement ring hollow with some of those best placed to know: the developer community.

"Ballmer's just trying to calm the troops," said a major software vendor executive, who requested anonymity. "He's trying to close the barn doors, or at least give the horses pause," said the official, who said the DoJ antitrust case is contributing to the ongoing departures of a number of senior and mid-level Microsoft employees.

Another industry official, who holds a Windows source-code licence, said: "None of the concessions they are supposedly offering damages them in any way. It's like they've already slain the enemy, and now they are offering to drop their sword."

Some news reports claimed that Microsoft is conceding PC makers Windows source-code access to let them swap out existing Windows components, such as Internet Explorer and the Windows Media Player, for competing technologies.

The extent to which source-code access would be required for OEMs to perform such a task is questionable, developer sources said. The OEMs have only sought the right to distribute Netscape Navigator alongside Internet Explorer, not in place of it, the sources said.

Some source-code licensees expressed skepticism on just how valuable such a concession would prove. "You already can change the source code all you want," said one licensee, who requested anonymity. "But the catch is that Microsoft owns the changes. And you can't redistribute any of them."

According to a copy of one Windows licence examined by ZDNet News, "Microsoft retains all right, title and interest in and to the software and any derivative technology thereof. Licensee hereby conveys and assigns to Microsoft, its successors and assigns all right, title and interest in and to any derivative technology of the software made by licensee under this agreement, including all copyrights, patents, trade secrets, and other proprietary rights therein (including renewals thereof)."

Another source-code licensee pointed out that Microsoft already licenses its source code to most of the top-tier PC makers, including Dell, IBM, Hewlett-Packard and Gateway.

"If it's just about giving these guys source code that they already have, who cares?" asked the licensee, who asked to remain anonymous. "And why would most OEMs remove Internet Explorer at this point, anyway?"

The issue of how easy or useful it would be for Microsoft and/or OEMs to separate Internet Explorer from Windows remains at the crux of the DoJ's Microsoft antitrust case.

It was Microsoft's integration of Internet Explorer into Windows that led the DoJ to bring its suit against Microsoft in the first place; it claimed that Microsoft was in violation of a 1995 consent decree that forbids product tying. During the current court case, Microsoft and DoJ witnesses have battled over the feasibility of removing Internet Explorer from Windows; Microsoft has claimed that giving OEMs a choice of which operating system components to support would result in "a disaster for consumers and software developers alike".

Microsoft's concession that it will publish all the Windows APIs also raises the hackles of a number of software developers. As they have noted, Microsoft has held steadfast for years to its claims that it already publishes all of its Windows APIs.

"The idea that they would publish all of their APIs is a complete non-concession," one developer said. "They already publish the main ones developers need. With a few selective ones, they provide them to friends and withhold them from enemies.

"The real issue here is when they'll publish the API. If they do this only when the product ships and not when the beta starts, it's meaningless for most application vendors," he added.

"A Microsoft commitment to make public undocumented Win32 APIs isn't worth much without an additional commitment to never employ undocumented APIs in the future," said Andrew Schulman, co-author and editor of the books Undocumented DOS and Undocumented Windows. "Microsoft has often gone back and published previously undocumented APIs -- usually after these APIs had already outlived their usefulness."

Developers stress that the DoJ lawyers and mediator Posner need to go over Microsoft's document with a fine-toothed comb to make sure the company has not left itself any loopholes.

According to news reports, that's exactly what they are doing. Judge Thomas Penfield Jackson has given both sides until approximately 7 April to come to terms. If they fail to do so, the judge is expected to issue his ruling, anticipated by many to find Microsoft in violation of antitrust laws on several counts. Microsoft has said it is prepared to appeal.

"Even if Microsoft really agreed to open its source, they'd just rev [the operating system code] every three to six months" to keep potential competitors at bay, said one developer who requested anonymity. "Microsoft will keep findings ways to wriggle around their concessions. This treadmilling of the industry is typical."

"It's all a game of semantics," added one of the aforementioned source-code licensees. "As we've found in our negotiations with Microsoft, when it's about semantics, Microsoft wins every time."

Is this Microsoft's biggest blunder ever? Go with Jesse Berst to AnchorDesk UK for the news comment.

In the movie Ferris Bueller's Day Off, a young man repeatedly escapes scot-free from one illicit prank after another. Meet Bill "Ferris" Gates -- go to AnchorDesk UK for the news comment.

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