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Good for Gates, not for consumers

Pratap Ravindran

MUMBAI, Nov. 3

MICROSOFT has walked away from its dust-up with the US Department of Justice (DoJ) relatively unscathed.

The US Attorney-General, Mr John Ashcroft, has described the settlement of the three-year anti-trust case against the software titan as a ``historical settlement'' that would bring ``effective relief to the market and ensure that consumers will have more choices in meeting their computer needs.''

And the Microsoft boss, Mr Bill Gates, has said that the settlement is ``fair and reasonable and, most important, is in the best interests of consumers and the economy.''

He has added, somewhat snidely: ``We recognise that the success of our products has created concerns. This settlement addresses those concerns in a fair and reasonable manner, while still enabling Microsoft to continue innovating and pushing technology f orward.''

The question is: The settlement may be good for the beleaguered US economy -- but would you describe it as ``in the best interests of consumers'' if you aren't Mr Bill Gates.

The answer, in balance, is no.

In order to understand why the settlement is not significantly in alignment with consumer interests, we'll have to back-track a bit and list the issues involved in the DoJ's case against Microsoft.

Basically, the department's contention was that Microsoft had used its domination of the operating systems market to keep competition out. It did this in various ways. For instance, it licensed its OS at reduced rates to leading computer manufacturers, i ncluding Dell and Compaq, on the condition that they exclusively installed MS software.

The Redmond outfit wasn't very delicate in its arm-twisting either. As IBM would tell you. The Big Blue lost several million dollars in sales when it declined to stop the sale of its own OS and software packages -- and Microsoft withheld critical details relating to Windows 95...till 15 minutes prior to launch!

And then again, in addition to giving away its Internet Explorer free, Microsoft `bundled' the browser into its Windows, leaving manufacturers without any choice but to pre-load it. Those who preferred to use Navigator were given a bad time with IE being triggered automatically as the default browser for a variety of functions.

Under the settlement, the cornerstone of the DoJ's case against Microsoft remains intact: it does not prevent Microsoft from tying software like its browser, e-mail client and media player with its OS. Which is the bad news for consumers.

What the settlement does require, however, is that Microsoft provide software developers with APIs used by its middleware to inter-operate with its operating systems, allowing developers to make competing products that can run on the integrated functions that Microsoft builds into its own middleware.

The above, of course, is not the only positive feature of the settlement. The other good features include:

a prohibition against retaliatory action by Microsoft against PC manufacturers and software publishers who develop competing software;

a requirement that Microsoft licence its operating systems to PC manufacturers on uniform terms for five years;

a ban on the company from entering into exclusive agreements; and

the creation of a panel of three independent monitors who will work on-site at Microsoft to oversee its conduct.

And that, as industry observers have observed, is about the best that can be expected of the Bush administration which is known to be more pro-business than the preceding one.

Abandonware: Copyright and other niceties...

THE outcome of the Microsoft legal wrangle has intriguing implications with regard to what could perhaps be called a fringe area of the global information technology (IT) industry -- discontinued or abandoned software, collectively tagged abandonware -- which is of considerable significance to developing countries such as India.

Abandonware is defined by those who distribute it as software that is at least five years old and is no longer sold or supported by its publisher or developer. By current reckoning, there are more than a 100 abandonware sites worldwide, offering free dow nloads of over a 1,000 software titles, predominantly games but also applications and operating systems.

They have been able to stay in business because anti-piracy groups, preoccupied with the protection of current titles, have, so far, not made any concerted efforts to go after them.

Inevitably, Microsoft has been involved in the abandonware controversy, too. Even those who have assumed a strong line against MP3s, warez and other manifestations of alleged copyright violations, cite the case of an Australian not-for-profit entity, Com puters for Kids, which drew flak from the software giant when it distributed old computers among children who couldn't afford them.

Microsoft demanded that Computers for Kids buy the current copies of Windows -- even though the machines were far too old to run Windows and the transaction would knock the entity's finances for a six. Eventually, Microsoft agreed to donate a few licence s to Computers for Kids -- less than what they needed but better than nothing.

This and similar incidents have resulted in a petition being posted on the Web, stating that some of the signatories are low income and unable to afford high-priced software, much less the brand new computers such software requires.

The petition goes on to say: ``Some of us are hobbyists with older computers (that) we enjoy restoring and putting to use. Some of us restore such computers for low cost or free distribution to schools and low-income families.''

It further proposes that software companies who own the licensing rights to software which are more than two full version numbers back from the current version or are more than seven years old or who own the rights to wholly discontinued titles should re lease these titles to the public domain as freeware.

However, assuming that software companies are open to the idea of accepting this proposal, the problem is that Section 302 of the US copyright law specifies duration. For works created after 1978, the copyright lasts for the life of the author plus 50 ye ars or, in the case of anonymous works, pseudonymous works and works made for hire, the copyright endures for a term of 75 years from the year of its first publication, or a term of 100 years from the year of its creation, whichever expires first. It is not very clear whether the owner can abandon a copyright even if he/she/it wishes to do so.

And so, the argument continues. Proponents of free abandonware argue that if publishers are no longer promoting a product, profiting from its sale or even supporting it, there's absolutely no harm in making it available without any charge. Software publi shers, on the other hand, stick to their position that any attempt to distribute abandonware free is piracy and a clear violation of copyright law and that is all there is to it.

Meanwhile, the myth of the so-called 24-hour rule persists in most parts of the world. The `rule' says that users can download a programme and use it for 24 hours -- presumably so that they can decide whether they want to buy it. In fact, there is no suc h `rule' in copyright law.