Out-Law News | 20 Jul 2006 | 2:59 pm | 6 min. read
Certain controls linked to the US antitrust ruling against Microsoft took effect in 2002 and will expire next year. Microsoft General Counsel Brad Smith announced the '12 tenets' yesterday to answer questions about what the company will do when it is free of these conditions.
"In a sense, an operating system alone is a bit like a dinner table without food or a Broadway stage without any actors," said Smith, addressing an audience in Washington, DC. "It is the platform on which other things rest, but it is not the end in and of itself. We need to fulfil our responsibilities to everyone who builds on top of our platform if we're to fulfil our responsibilities to the world at large."
He added: "We've learned that people care not only about what we do but about how we do it. So, our goal today is to be principled, transparent and accountable in our design of Windows as we go forward now and in the future."
Smith said the principles are designed to customers, the computer industry and regulators alike. "Microsoft is committed to developing Windows in ways that advance innovation for consumers and preserve important and robust opportunities for competition," he said.
The principles include an undertaking to design Windows – including the forthcoming Windows Vista – and licence it on contractual terms so as to make it easy to install non-Microsoft programs and to configure Windows-based PCs to use non-Microsoft programs instead of or in addition to Windows features.
Smith acknowledged that the principles do not answer all questions raised by regulators and courts.
"They can't possibly address all of these questions, and they don't attempt to, he said. "They don't, for example, address all the issues in the European Commission's 2004 decision, which, of course, is being reviewed by the European Court of First Instance, and with which Microsoft has a continuing legal duty to comply."
The 12 tenets are broken into 3 principles. They are as follows:
Microsoft is committed to designing Windows and licensing it on contractual terms so as to make it easy to install non-Microsoft® programs and to configure Windows-based PCs to use non-Microsoft programs instead of or in addition to Windows features.
What this means:
1. Installation of any software. Computer manufacturers and customers are free to add any software to PCs that run Windows. More broadly, every computer manufacturer and customer is free to install and promote any operating system, any application, and any Web service on PCs that run Windows. Ultimately, end users are free to choose which software they prefer to use.
2. Easy access. Computer manufacturers are free to add icons, shortcuts and the like to the Windows Start menu and other places used to access software programs so that customers can easily find them.
3. Defaults. Microsoft will design Windows so as to enable computer manufacturers and users to set non-Microsoft programs to operate by default in key categories, such as Web browsing and media playback, in lieu of corresponding end-user functionality in Windows. Computer manufacturers are free to set these defaults as they please when building new PCs.
4. Exclusive promotion of non-Microsoft programs. In order to provide competitors with the opportunity to attain essentially exclusive end-user promotion on new PCs, computer manufacturers will have the right to remove the means by which end users access key Windows features, such as Internet Explorer and Windows Media® Player. The Set Program Access and Defaults utility developed as part of the U.S. antitrust ruling makes it easy for users and computer manufacturers to exercise these options.
5. Business terms. Microsoft will not retaliate against any computer manufacturer that supports non-Microsoft software. To provide transparency on this point, Microsoft will post a standard volume-based price list to a Web site that is accessible to computer manufacturers, as it has under the U.S. antitrust ruling. Windows royalties will be determined based on that price list, without regard to any decisions the computer manufacturer makes concerning the promotion of non-Microsoft software. More broadly, Microsoft will offer Windows for license on standard terms and conditions so that a computer manufacturer knows that it will be offered the same licensing terms regardless of its decision to promote or not promote software from competitors. Microsoft will consider modifications to the standard license terms to reasonably accommodate computer manufacturers with individual business-model or operational requests, but these variances will never be based on the extent to which the computer manufacturer promotes non-Microsoft software.
Microsoft is committed to designing and licensing Windows (and all the parts of the Windows platform) on terms that create and preserve opportunities for application developers and Web site creators to build innovative products on the Windows platform — including products that directly compete with Microsoft’s own products.
What this means:
6. APIs. Microsoft provides the developer community with a broad range of innovative operating system services, via documented application programming interfaces (APIs), for use in developing state-of-the-art applications. The U.S. antitrust ruling requires that Microsoft disclose all of the interfaces internal to Windows called by “middleware” within the operating system, such as the browser, the media player and so forth. In this way, competitors in these categories will know that they can plug into Windows to get services in the same way that these built-in Windows features do. This has worked well, and we will continue to disclose these interfaces even after the U.S. antitrust ruling expires. In fact, we will go further, extending our API commitment to the benefit of all software developers. Going forward, Microsoft will ensure that all the interfaces within Windows called by any other Microsoft product, such as the Microsoft Office system or Windows Live™, will be disclosed for use by the developer community generally. That means that anything that Microsoft’s products can do in terms of how they plug into Windows, competing products will be able to do as well.
7. Internet services. Microsoft is contributing to innovation in the area of Internet services with services that we call Windows Live. Microsoft will design Windows Live as a product that is separate from Windows. Customers will be free to choose Windows with or without Windows Live.
8. Open Internet access. Microsoft will design and license Windows so that it does not block access to any lawful Web site or impose any fee for reaching any non-Microsoft Web site or using any non-Microsoft Web service.
9. No exclusivity. The U.S. antitrust ruling generally provides that Microsoft may not enter into contracts that require any third party to promote Windows or any “middleware” in Windows on an exclusive basis. We will maintain this practice going forward, and in fact broaden it to apply to Windows or any part of Windows, whether or not it would qualify as “middleware” under the U.S. antitrust ruling. We will apply the concept of “exclusivity” broadly too, so that our contracts ensure that a third party can use non-Microsoft software in amounts equal to or greater than its use of Windows. More generally, we want the developer community to know that it is free to develop, support and promote products that compete with any part of Windows. Consistent with the U.S. antitrust ruling, Microsoft will not retaliate against any third party for exercising this freedom.
Microsoft is committed to meeting customer interoperability needs and will do so in ways that enable customers to control their data and exchange information securely and reliably across diverse computer systems and applications.
What this means:
10. Communications protocols. Microsoft will make available, on commercially reasonable terms, all of the communications protocols that it has built into Windows and that are used to facilitate communication with server versions of Windows. To facilitate this, Microsoft will document protocols supported in Windows as part of the product design process. We will also work closely with firms with particular needs to address interoperability scenarios that may require licensing of other protocols.
11. Availability of Microsoft patents. Microsoft will generally license patents on its operating system inventions (other than those that differentiate the appearance of Microsoft’s products) on fair and reasonable terms so long as licensees respect Microsoft’s intellectual property rights.
12. Standards. Microsoft is committed to supporting a wide range of industry standards in Windows that developers can use to build interoperable products. Microsoft is committed to contributing to industry standard bodies as well as working to establish standards via ad hoc relationships with others in the industry.