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Love and Linux

In their June 1998 letter to the Justice Department, Ralph Nader and James Love urged the federal government to endorse the "revolutionary" changes that OSS could bring to software development.

The letter clearly revealed the motivations of Nader and Love. Even though Justice was pursuing allegations of illegal efforts to bar entry to the software market, Nader and Love were asking Klein to address "barriers" that are perfectly legal and make the software industry possible. Their complaint is that Microsoft holds the source code of its software, its "intellectual property," preventing OSS developers from competing on an equal footing. The only "remedies" that might solve the problem -- remedies that are never formally proposed in the letter -- are to force the release of Microsoft-owned source code or to destroy Microsoft's ability to purchase and market proprietary software.

CPT director Love is Nader's "attack dog" in the effort to bring down Microsoft and to promote OSS. Love's public statements repeatedly endorse the open source concept and deride Microsoft's reliance on proprietary software.

"It's time to think about how we can learn to live without a Microsoft operating system," Love told the San Jose Mercury News last fall. "This may be essential if we want to protect the Internet as a competitive and open platform."

As early as 1996, Nader's Consumer Project on Technology (CPT) signed a joint letter with several "consumer" organizations, addressed to the delegates to a conference convened by the U.N.'s World Intellectual Property Organization. The letter opposed consideration of copyright treaties which might interfere with OSS developments. "For example, the popular Web browser Netscape would arguably be an illegal device, not only because it is used for reading documents into memory to display them, but because it has features which permit the easy reading and downloading of source code for HTML documents, as well as digital images," the letter states.

One of Love's strategies appears to be the promotion of Linux-based operating systems. He has pressured companies -- including Compaq, Dell, Gateway, Hewlett-Packard, Micron and Packard Bell-NEC -- to offer consumers a choice of operating systems including Linux. CPT's web site includes a page on "alternative operating systems" that focuses heavily on Linux.

Interestingly, at the end of an opinion article in Computerworld magazine last November, Nader and Love disclose CPT's use of the Linux software program at its Washington, D.C. offices. But nowhere in the body of the article do the authors mention Linux.

CPT's support for OSS in the Microsoft case has carried over to public opposition to the AOL-Netscape merger. The deal could be a deathblow for OSS, because it allows AOL to combine Netscape's OSS browser technology with its online services. Love told the San Jose Mercury News that AOL seeks to "move the Internet away from open standards and interoperability."

Love is concerned that AOL will put a stop to Netscape's recent interest in OSS, exemplified by its decision to release the source code of its Communicator software. "Consumers will be harmed if Microsoft and AOL use their control over the browser software to migrate important new Internet functionality from open standards to proprietary technologies," Love argues. Last November, he warned CPT supporters that while AOL could not retrieve the Netscape code that has been released, AOL could change the license agreement for future versions of Netscape's browsers and "take back" ownership.

"Both these firms [Microsoft and AOL] are very hostile to the idea that new platforms and services would be based upon open protocols," Love said. "Both companies create proprietary content, use proprietary technologies, and have an interest in migrating new network intelligence out of the open platform." Love cited Linux as an example of software that should be protected.

"We are also concerned about the impact of the merger on Netscape's commitment to supporting software that runs on Linux or other operating systems that compete with Windows," Love said last November.

Nader's Nonprofit Allies

On April 30, Nader and one of his many nonprofit groups, Essential Information, hosted a conference on "remedies for anticompetitive conduct by Microsoft." This is Nader's second conference on Microsoft: his November 1997 "Appraising Microsoft" conference attracted widespread media attention. The December issue of Organization Trends revealed the many close ties of conference speakers to Microsoft competitors.

What is striking about the conference's agenda is its heavy focus on "remedies" that benefit the OSS movement. In particular, the final panel addressed what Nader calls "Non-Antitrust Remedies." This included a discussion of Linux and other free software.

As the Capitol Research Center noted in its report on the 1997 conference, the speakers were heavily biased against Microsoft. But what we failed to notice at the 1997 conference was the common devotion to OSS among many of Nader's allies. Further research suggests Nader and Love may not be the only advocates for whom OSS is central to the attack on Microsoft.

One speaker at the 1997 conference seemed a peculiar choice. Daniel Nachbar, executive director of the Public Software Institute (PSI), argued that "the presence of free nonprofit software in a particular sector of the market is an excellent indicator" of unfettered competition. He claimed there was a lack of free operating system software -- despite the availability of Linux and several other OSS products -- and therefore suggested Microsoft was engaged in anti-competitive activities to promote Windows.

CPT's Love sits on PSI's six-member board of directors. PSI is a 501(c)(3) nonprofit based in Amherst, Massachusetts that develops free "public" software and provides computer science instruction.

"Consumers should control their computers," PSI argues. "Computers are controlled by software and today, software is controlled by commercial software vendors.... Without access to [source code], consumers are nearly powerless."

Also represented at the 1997 conference was the San Francisco-based Electronic Frontier Foundation (EFF), a "cyber-liberties" organization that supports privacy protections in telecommunications and opposes "decency" regulations. EFF vice chairman John Perry Barlow told conference participants that the threat to liberty on the Internet was not the government, but Microsoft.

Barlow is a former lyricist for the Grateful Dead rock group who has redefined himself as a "cyberspace" philosopher. In his 1996 "Declaration of the Independence of Cyberspace," he rejected all "legal concepts of property, expression, identity, movement and context" as they apply to the Internet. Earlier he wrote that protections for "intellectual property" improperly treat ideas as physical products, a key argument for lifting legal protections on source code for proprietary software.

"[W]hen the primary articles of commerce in a society look so much like speech as to be indistinguishable from it, and when the traditional methods of protecting their ownership have become ineffectual, attempting to fix the problem with broader and more vigorous enforcement will inevitably threaten freedom of speech," Barlow wrote in 1992.

Nader's 1997 conference also featured Audrie Krause, a leading Microsoft critic and founder and executive director of NetAction, which advocates online activism. The San Francisco-based nonprofit is a project of the left-wing Tides Center, also in San Francisco.

Krause has received media attention for calling Bill Gates "the modern-day equivalent of a robber baron" and for vigorously defending Netscape from Microsoft's alleged bullying. OSS is an important motivate for her anti-Microsoft activities: "Realizing the vision of open source computing is what motivates many Microsoft critics, including NetAction, to oppose Microsoft's growing monopoly control of the computer marketplace," admitted NetAction project director Nathan Newman in a July 1998 newsletter.

Last summer, NetAction announced a series of meetings in Silicon Valley and San Francisco to bring together software developers, media reporters and others interested in the open source concept. NetAction also rallied consumer activists to oppose changes in the federal Uniform Commercial Code that would expand the intellectual property rights of software publishers. The proposed changes would require software purchasers to assent to licensing contracts at the time of installing software, instead of at the time of purchase. Users not consenting to the license could receive a refund.

Included on NetAction's web site is an "Open Source Action Kit," including a report urging the federal government to use OSS "as a vehicle for promoting economic development and as a policy tool which could assist the Justice Department in its antitrust action against Microsoft." The report recommends that the government purchase OSS products, release the source code for internal government and military software and encourage open industry standards for software developers. NetAction urges supporters to send the report to Members of Congress and lobby for legislative action.

Free Market on Trial

It is clear that Nader and his allies have embraced OSS. But returning to the question posed at the beginning of this article, how does this translate into a "remedy" if Microsoft loses its antitrust trial?

Nader and Love have written extensively about remedies. They seem to favor the following proposals:

  • Break up Microsoft: The New York Post recently claimed that "lawyers close to the case" believe a breakup is a "strong possibility." But the Washington Post reports a "source close to the government's case" says a breakup is unlikely. Whether Justice pursues this action or not, the proposal has attracted media attention and the support of Microsoft's competitors.

A breakup could happen two ways: Microsoft could be separated into "Baby Bills," each holding a version of Windows that would compete against the others. Or Microsoft could be divided into separate companies by specialty: operating systems, Internet-related activities and software applications. Love seems to favor the latter option: "Breaking up the company would solve problems relating to Microsoft's use of its operating-system monopoly to favor its own applications and E-commerce sites," Love wrote in Computer Reseller News last November.

OSS advocates probably hope a breakup gives Linux and other OSS products a foothold against Windows. But it is more likely that Microsoft's demise will encourage other proprietary companies to fill the gap. With Microsoft weakened, companies will have little interest in supporting OSS operating systems and applications.

Moreover, the remedy will not help consumers. It will tear apart a company that provides the world's favorite standard operating system; about 90 percent of computer users have Windows. It also will not resolve the main issue that brought Microsoft to trial. A separated operating system company will still face the question of whether Internet browsers can legitimately be incorporated into an operating system.

  • Mandate "nondiscriminatory" licensing: Microsoft has been accused of using licensing agreements to prevent computer sellers from pre-installing non-Microsoft operating systems and other software. In particular, Love suggests that Microsoft discriminates against sellers that pre-install Linux. The court could prevent Microsoft from enforcing such licenses.

Clearly, this remedy will help OSS software compete more aggressively with Microsoft products. OSS advocates think open-source products appeal to consumers more than their history demonstrates, so the licensing remedy is probably appealing. But sellers' interest in pre-installing software depends on consumer interest, which seem to favor Windows. Indeed, it is the high consumer demand for Microsoft products that enables Microsoft to convince sellers to accept licensing agreements with the company.

Again, this remedy will do little to benefit consumers. Free market competition among companies, which includes the legal right to enter into licensing arrangements, results in the best products available to consumers at the best prices. A change in licensing agreements will primarily benefit Microsoft's competitors, not consumers.

  • Enforce "interoperability": By not revealing technical information about the interfaces needed for software programs to work well with Microsoft software, Microsoft allegedly impedes fair competition from other software makers. Love argues that the court should force Microsoft to "give rivals the same access to operating system [interfaces] as it provides its own application developers."

Of course, OSS and alternative software developers will benefit from the ability to produce software that works well with Windows and other Microsoft programs. But depriving Microsoft of its legitimate property rights and giving software developers an artificial competitive boost does not ensure the success of OSS products. These are likely to be overshadowed by proprietary software.

Again, this remedy will benefit Microsoft's competitors, not consumers. Consumers already have sufficient choice among competitive software applications, and even Windows has competition from operating systems like Linux and Unix. Destroying intellectual property rights, a key step toward a total OSS system of software production, will only force software companies out of the market and lead to declining choice and quality.

  • Mandate "support for or noninterference with nonproprietary protocols": This remedy, suggested by Nader and Love last November, is perhaps the most promising for OSS advocates. The court needs simply to require Microsoft to assist or at least not interfere with collaborative efforts to develop standard "protocols" to encourage conformity among software products. Such protocols would dampen the creativity and progress of software developers like Microsoft, which develops and periodically changes its own protocols for its own software. But "nonproprietary" protocols would help OSS developers to provide programs with greater interoperability and that build on successful proprietary software like Windows.

Another option that would accomplish the same goal is the release of the source code for Microsoft products. This "remedy" has been discussed in media reports and is favored by some OSS advocates. It could be required by the court, but it is more likely a settlement option.

Each of these proposals promises to advance the development and marketing of open source software. While Nader and his allies have many reasons to pursue the Microsoft's demise -- not least of which is a deep-seated distrust of large corporations and the free market -- OSS is a motivation that has largely been overlooked by the media.

It is important to understand the role of OSS for several reasons. First, it shows that those who support the antitrust trial against Microsoft are not interested exclusively in antitrust. In part, the anti-Microsoft effort is a step toward revolutionizing the software industry by eliminating market incentives for software development and relying instead on voluntary production. Whether or not Microsoft supports the "free software" movement is unrelated to the issue of monopoly.

Second, OSS reveals that the Microsoft case is partly about benefitting Microsoft's competitors, not consumers. Even a drawn-out case that Microsoft wins will help OSS developers and other competitors gain a foothold in the market. The aggressive stance of Microsoft's competitors, including their temporary support for Linux, may be intended simply to hurt Microsoft rather than provide better consumer products.

Finally, OSS shows that Nader and his allies -- self-proclaimed consumer advocates -- do not have in mind the best interests of consumers. His support for cyber-anarchism would deprive companies of their property rights and deprive consumers of standard, quality software.

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