San Jose Mercury News
Sunday, December 26, 1999

Edition: Morning Final Section: Perspective Page: 1P

Memo: Eben Moglen is a Columbia University law professor and serves without fee as general counsel of the Free Software Foundation. He wrote this article for Perspective.


NOW THAT Judge Thomas Penfield Jackson's findings of fact have had a little time to sink in -- and Microsoft and the Justice Department have met for talks under the mediator's eye of Judge Richard Posner -- we need no longer debate whether the company violated the antitrust laws.

There is a very strong legal pressure for settlement that hasn't been much discussed in the press. Unless Microsoft settles this case before Jackson's final judgment (no date has been set), his devastating finding of facts will become enshrined in case law for purposes of future private litigation against Microsoft. That means anyone with a claim of unfair market behavior by Microsoft could begin a suit having already proven that Microsoft is a monopoly, and that it misused its market position in certain fundamental ways.

That would reduce plaintiffs' costs of discovery and proof enormously -- and would provide a huge incentive to bring private antitrust cases against the company. The weight of all the ensuing private litigation could sink 12 Microsofts.

So, regardless of Gates' own personal distaste for the prospect, the company had better settle with the United States. The only question is whether the terms on offer are ones Microsoft can accept.

We should not expect Microsoft to agree to its own dismemberment, or to the forcible licensing of Windows source code. But what we really need to do about Microsoft can be done without imposing conditions that are either unprecedented or unacceptable for a company meaning to do fair business in a responsible way.

The Justice Department has convinced the judge -- and almost all observers not on the Microsoft payroll -- that the company used its dominance in the market for Intel-powered PC operating systems to prevent the development of potential competitors. As Jackson shows in his findings, the primary goal has been to drive from the market any software that offers applications program interfaces (APIs) that would reduce developers' dependence on Windows.

Suppressed software

Jackson found that in its relations with four other major players in the industry -- IBM, Sun, Intel and Netscape -- Microsoft used its market power over the operating system to suppress software -- including OS/2, Java and the Mozilla Web browser -- that offered non-Windows APIs for use by other developers. The monopolization of the APIs, Jackson explicitly states, was the real goal of the browser wars.

We need to restore vibrant competition to the operating systems market. The major commercial competitors have left the field: IBM shows no sign of reviving OS/2, and Apple remains a hardware manufacturer uninterested in adapting its own operating system to Intel-based hardware.

The real remaining competitor for Windows isn't a commercial product: It's free software.

1999 has been the year of Linux. What was a marginal product known only to technical specialists just a few months ago has been promoted and hyped through a series of attention-grabbing IPOs, resulting in the kind of press coverage that a free product with no advertising budget never could have achieved. But the hype has left most non-specialists unclear about a few fundamentals.

``Linux'' is the name of the kernel (the innermost part of the larger system) of free software. The larger system includes not only the kernel but also thousands of programs -- operating system components and applications programs -- designed to work together and built collaboratively by tens of thousands of volunteers all over the world.

In theory, there is no technical barrier to having the free software combination of the Linux kernel, GNU and X Windows -- originally invented at MIT and much more powerful and sophisticated than the Microsoft product -- run all the world's Windows applications, on non-Windows PCs, straight out of the shrink wrap.

Is that only theory? No. Check out the so-called Windows emulator project, WINE (

WINE runs Windows programs on Linux systems at the native speed of the machine. As programs request service from the Windows APIs, WINE translates the requests to similar APIs that are implemented by the Linux kernel and X Windows. Many Windows applications run faster under WINE than under Windows itself.

Though WINE is still under development, it has almost 100,000 users around the world. When WINE is finished, any program written for Windows 3.1/9x/NT will run just as well on free software systems as it will run under Windows itself.

So what do we need to settle U.S. vs. Microsoft on terms that will bring real competition to the market?

Everyone benefits

That should satisfy the Justice Department, which would not have to seek more intrusive remedies. Microsoft would be entirely free to continue to innovate and improve its products, which is what the company has said it cares most about -- and it might not face the torrent of private antitrust litigation that is otherwise inevitable. Consumers would get a completely free operating system, entirely compatible with all the applications they use every day, more flexible and more reliable than Windows. Everyone would benefit.

But time is running out. Microsoft should make the deal to strengthen free software before the rush of events deprives it of the chance. If it doesn't, a decade from now industry experts and disappointed investors will be wondering why Microsoft chose instead the path that led to its complete destruction.


Here are some terms relevant to the free-software movement, in which software is developed by volunteer programmers around the world.

Applications program interface. A set of rules that software programmers follow to get necessary services from a computer's hardware or the Internet.
A free-software operating system originated in 1984 by Richard M. Stallman.
Linux (pronounced LIH-nucks)
The kernel of the GNU system, named for its originator, Linus Torvalds.
Microsoft Corp.'s graphical user interface.
X Windows
A free-software graphical user interface.
Translation software that allows Microsoft Windows applications to run on non-Windows personal computers.

Caption: PHOTO: The Linux mascot. [991226 PE 1P] PHOTO: Eben Moglen [991226 PE 6P] The San Jose Mercury News archives are stored on a SAVE (tm) newspaper library system from MediaStream Inc., a Knight Ridder company.