[DMCA-Activists] Eben on Microsoft vs. Free Software

[Seth Johnson]

> http://www.linuxuser.co.uk/articles/issue27/lud27-free_software_matters.html


Microsoftens

By Eben Moglen

Eben Moglen is professor of law at Columbia University Law School. He serves
without fee as General Counsel of the Free Software Foundation. You can read
more of his writing at moglen.law.columbia.edu


There's plenty of uneasiness in Redmond, Washington, these days. Microsoft
has begun to internalize the recognition that the next, and quite probably
final, period of its existence will be dominated by competition with free
software. That competition presents challenges the monopoly has never faced
before, and already it has become necessary, at what Microsoft hopes is
still an early stage in the confrontation, to take steps that no other
competitor has ever had the power to force.

Competing with free software is problematic for Microsoft for many reasons.
There's no company to acquire, in the first place, in order to incorporate
or suppress attractive competing products - a strategy that the monopoly has
pursued so often and so successfully in the past. Because free software is
continually modified and improved by all its users, there's no 'evolutionary
dead end' argument with which to scare customers: someone choosing to use
free software is never going to be left with an unserviceable product whose
maker has gone out of business, leaving the code 'orphaned' in the face of
constantly shifting technology. Microsoft's implicit message to its
customers has been 'We're always going to exist; our competitors, whose
products you are considering, won't last forever.' But technically
sophisticated corporate and governmental users now realize that the free
software codebase will last indefinitely, capable of renewal and replacement
for as long as its users need it. No matter how long Microsoft lasts, free
software will last longer.

As I have said in this space recently, one of the hottest fields of
competition at the moment is also the largest aggregate software market on
earth: the world's governments. More than sixty-five countries and dozens or
hundreds of political subdivisions are actively considering legislation or
regulations favoring the use of free software for government computing.
National governments have begun actively considering use of free software
for all the reasons (price, flexibility, power of modification - in other
words, freedom) that other corporate and individual users also identify. But
they have at least one additional reason for adopting free software: they
suspect that Microsoft has done favors for the US intelligence community,
embedding 'back doors' in Windows that permit US listeners to monitor
encrypted communications generated using the Windows Cryptographic
Applications Program Interface (CAPI). Last month, in an unprecedented move,
Microsoft announced that it will release Windows source code for review by
foreign governments, to help them evaluate whether Windows is a good public
purchase. In addition, Microsoft will allow foreign governments to connect
their own CAPI to Windows, supposedly in order to eliminate any risk that US
intelligence services have embedded spy code in the company's products.

Unprecedented as the program to show source to foreign governments and
permit limited modification was, Microsoft took an even more extraordinary
step in its recent filings with the US Securities and Exchange Commission.
The SEC requires publicly-traded companies to file quarterly statements
indicating any major changes in position since the publication of their
annual reports, and disclosing any new or additional risks to their
profitability. Microsoft now states that "the popularization of the Open
Source movement continues to pose a significant challenge to the Company's
business model, including recent efforts by proponents of the Open Source
model to convince governments worldwide to mandate the use of Open Source
software in their purchase and deployment of software products. To the
extent the Open Source model gains increasing market acceptance, sales of
the Company's products may decline, the Company may have to reduce the
prices it charges for its products, and revenues and operating margins may
consequently decline."

Naturally Microsoft has always found it desirable to emphasize in its SEC
filings that it faces market competition: its antitrust difficulties render
it eager to discuss the highly competitive nature of the software market at
every opportunity. But this decision to acknowledge free software as a
fundamental challenge to the Microsoft 'business model,' along with the
quite specific acknowledgement that prices of its products will have to be
cut, represents a watershed moment in the monopoly's history. The global
investment community now has the best possible authority for taking a second
look at its unquestioned belief in Microsoft's durability: the official
statements of the company itself.

These new statements, of course, like all other Microsoft pronouncements on
our movement, eschew two words: 'free software.' The company still cannot
acknowledge the fundamental challenge to its way of doing business, which is
users' need for freedom: the freedom to understand, fix, improve, and share
the software that they depend on. Microsoft likes to refer to 'open source,'
which sounds like something Microsoft could do itself. Its so-called 'shared
source' initiatives, including the most recent one for foreign governments,
are designed to mislead in precisely this way. But what Microsoft cannot do,
what it will die trying to prevent us from doing, is to make software free.
'Freedom' is the word the monopolist cannot use, which is why, at the
beginning of the end of the Microsoft Era, Free Software Matters.

© Eben Moglen, 2003.
Verbatim copying of this article is permitted in any medium, provided this
notice is preserved.

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