From: Harvey Newstrom (newstrom@newstaffinc.com)
Date: Thu Dec 23 1999 - 22:36:47 MST
Spike Jones <spike66@ibm.net> wrote on Thursday, December 23, 1999 9:32 pm,
> I am no fan of microsloth. However, if the "Justice" department forces
> MS to open source windoze, that looks to me like government seizing
> the property of the rich. Perhaps this move would be beneficial to the
> masses, but sets a very uncomfortable precedent. spike
Actually, the precedent is already set. From Ralph Nader's and James Love's
article for _Legal_Times_, published on Monday, December 13, 1999 at
<http://www.legaltimes.com/expcfm/display.cfm?id=2411&query=microsoft
A much better framework for dealing with interoperability concerns
comes from Europe. In the early 1980s, the Reagan administration
dismissed the government's long-standing antitrust case against
the IBM Corp, but the European Commission's antitrust authorities
did not quit. In 1984, they reached a settlement with IBM over a
long history of complaints that echo today's concerns about Microsoft.
In December 1980, the EC had found IBM to be a dominant supplier
and accused it of abusing that position by failing to supply its
competitors "in sufficient time" with technical information needed
to create products that would work with IBM's mainframe computers.
The EC also complained about hardware and software bundling and
about various refusals to supply services to customers who used
non-IBM hardware. There were extensive hearings and negotiations
about remedies, including discussions with an advisory committee
of national experts.
After tough bargaining, IBM agreed to a sweeping remedy to ensure
competitors' access to mainframe interface information. The so-called
IBM Undertaking covered the company's System/370 computers, the
dominant platform for mainframe computers. It began in Aug. 1,
1984, and it worked like this:
IBM agreed to provide interface information to competitors by
specific benchmark dates, such as "as soon . . . as such interfaces
had become reasonably stable." That information would be provided
either through established documentation and related materials
(such as source code) or through some other adequate means, including
newly prepared documents containing only the interface information.
IBM acknowledged the "widespread interest in interconnecting systems
and networks of different manufacturers," and agreed to publish
extensive information to facilitate the attachment of competitors'
systems or networks to IBM networks.
Any company that was doing business in the EC and developing relevant
products, including U.S. and Japanese companies, could ask IBM for
such interface information. And IBM would charge only reasonable
and nondiscriminatory fees for the information.
IBM was required to support international standards for interconnection
- including "open system" interconnection - for the products,
systems, and networks of rival manufacturers.
In addition to signing the Undertaking, IBM agreed to a system of
oversight that required the company (1) to meet with EC authorities
every year to "take stock of the implementation of the Undertaking
and its effects," and (2) to present the EC with an annual report
describing in detail "IBM's response to each question or request
received under the terms of the Undertaking." IBM would also discuss
the outcome of these cases with EC antitrust authorities.
After five years, the company could have ended this arrangement.
But IBM seemed to recognize that the EC process had created a new
level of comfort for companies that made third-party products for
the IBM mainframe platform and, in the eyes of some observers at
least, helped protect IBM from itself. Thus, IBM voluntarily
permitted the agreement to run for 11 years - six more than the
minimum requirement.
The EC reported that by July 1995, IBM had received 262 requests
from 24 competitors and addressed 2,001 individual questions. In
the 11th year alone, there were 50 requests and 436 individual
questions.
The IBM Undertaking sets a benchmark for evaluating the remedies
currently proposed in the Microsoft case. It also provides a model
of ongoing oversight that few so far have been willing to apply to
Microsoft, but that may be needed to ensure that Microsoft follows
through on its commitments.
-- Harvey Newstrom <http://harveynewstrom.com> Certified Consultant, Legal Hacker, Engineer, Research Scientist, Author.
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