IP: Microsoft's compelled speech

[David Farber <farber () cis upenn edu>]

Date: Tue, 25 Nov 1997 10:50:19 -0500
From: James Love <love () cptech org>


The second part of this note concerns aspects of the licensing agreement
that software developers must sign to distribute the latest version of
COMCTL32.DLL, and important part of the Windows 95 and NT operating
systems.  Not only does Microsoft require third party developers to
distribute and install Microsoft Internet Explorer on their customers'
computers to use this file, but Microsoft requires software companies to
issue MS reviewed press releases, place the MSIE logo on a company's
home page, deploy MS specific technologies (e.g., Channel webcast
optimization via a CDF file, Dynamic HTML, or NetShow content) on a
company's Internet product page, and make MSIE and MS Outlook available
Explorer and Outlook Express available for use
internally under a company's customary information services policies and
procedures.


   Jamie


--------------------------------------------------------
Info-Policy-Notes | Available from listproc () cptech org
--------------------------------------------------------
INFORMATION POLICY NOTES
November 24, 1997*


      -    Discussion of Microsoft Leverage of Windows 
           to market its applications


      -    Special attention to distribution license for 
           Common Control DLL, which is an example of 
           Microsoft licensing practices which require
           competitors to market MS applications if they use 
           updated Windows components


     The past few days there have a few articles which talk about the
ways that Microsoft is seeking broad integration of Windows (3.1, 95 
or NT) operating systems with Microsoft applications as a way of
"leveraging" the OS market share for the applications. This was the
topic of James Gleick's interesting "Justice Delayed" in the November
23, 1997 New York Times Magazine (not on the Web at this time), my own
article in Intellectualcapital.com


http://www.intellectualcapital.com/issues/97/1120/icpro.asp (no comma),
and the recent Department of Justice reply brief in the Microsoft case.


     One item referenced in the November 20, 1997 DOJ brief was a
December 20, 1996 document sent by Microsoft's Jim Allchin (who now
heads Microsoft's personal and business systems group) to Paul Maritz
(group vice president for Microsoft's platforms and applications group. 
The message, which was titled: "concerns for our future," states:




              1. Ensuring that we leverage Windows. 
              I don't understand how IE is 
              going to win. The current path is simply 
              to copy everything that Netscape
              does packaging and product wise. . . . 
              My conclusion is that we must
              leverage Windows more. Treating IE as just 
              an add-on to Windows which
              is cross-platform [is] losing our biggest 
              advantage -- Windows  marketshare. We 
              should dedicate a cross group team to come 
              up with ways to leverage Windows 
              technically more. . . . . 
              We should think  first   
              about an integrated solution -- that is 


              our strength.


              [Gaspar Conf. Decl. 17, Exh. 14 (December 
               20, 1996 e-mail from Jim Allchin to Paul 
               Maritz).


The DOJ brief is on the Web at:  


http://www.usdoj.gov/atr/cases3/micros2/1277.htm (no period).  
Other DOJ documents in the case are available from 


http://www.usdoj.gov/atr/cases3/micros2/micros0.htm




       In a November 19, 1997 post to info-policy-notes, I reported
Great Plains Software's letter to DOJ, objecting to Microsoft's decision
to force third party software companies to distribute Microsoft's
Internet Explorer (MSIE), if they distribute the latest version of the
"Common Control DLL,"
(http://www.essential.org/listproc/info-policy-notes/msg00274.html), 
a file which is part of Windows.  


Brett Glass, wrote to say:


       "COMCTL32.DLL is a general-purpose library that's 
        used by virtually every application. One thing this 
        particular article did not point out, though, is the 
        consequences that ripple through from the MSIE 
        license agreement.    These are key to understanding 
        the full import of the tying arrangement. . . 
        As MSIE licensees (and all developers must be, 
        since COMCTL32.DLL is fundamental to shipping a 
        Windows app), are literally required to make their 
        Web sites incompatible with Netscape browsers. 
        What's more, they're required to issue press releases 
        saying they've adopted IE, creating the perception of 
        incredible momentum in the press. What's more, if 
        they get on Microsoft's bad side, it pulls the 
        license and they can no longer ship product."




        At Brett's suggestion, we reviewed Exhibit C of the Microsoft
distribution license for MSIE.  A copy is attached below. It is a
textbook case of Jim Allchin's proposal for leverage.


     Jamie Love
     love () cptech org
     202.387.8030
     http://www.cptech.org




                              EXHIBIT C
                        Marketing Activities




    Company shall participate in the following marketing related
activities:


   (i) Issue a press release announcing that Company has licensed
Internet Explorer, Outlook Express, or NetMeeting within sixty (60) days
following execution of this Agreement, or authorize Microsoft to use
Company's name in press releases to identify Company as a licensee of
Internet Explorer, Outlook Express or NetMeeting. The party preparing
the press release shall provide such release to the other party for
review at least five (5) days prior to release;




   (ii) Use and display the Microsoft Internet Explorer logo online logo
on the home page for Company's Internet Product along with a hot link to


www.microsoft.com/ie on home page of Company's primary web site(s) in
accordance with the terms set forth at www.microsoft.com/ie/logo, or any
successor thereof; 




   (iii) Use the Microsoft Internet Explorer name and logo depicted in
Exhibit A in Company' packaging, advertising an promotional materials.
Such use shall be pursuant to the Guidelines in Exhibit A and
Microsoft's standard trademark policies as may be provided by Microsoft


to Company from time to time;




   (iv) Make Internet Explorer and Outlook Express available for use
internally under Company's customary information services policies and
procedures; and




   (v) Deploy [and promote where appropriate] at least one advanced
feature of Internet Explorer 4 (e.g., Channel webcast optimization via a
CDF file, Dynamic HTML, or NetShow content) on Company's Internet
Product page.


* corrected for three typos on Nov 25.


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