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MS demo video breaches own licence agreements

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MS on Trial A Microsoft demonstration of how easy it is for OEMs to customise the Windows desktop shown yesterday was in breach of Microsoft's OEM licensing agreements. Or at least, it was if the OEM isn't one of a handful of top PC manufacturers. Microsoft showed the video to accompany the testimony of OEM licensing chief Joachim Kempin, who argued earlier this week (see Kempin testimony) that Microsoft's OEM customers have a great deal of freedom to install whatever software they like on their machines. The vast majority of Microsoft OEM customers do not however have this degree of flexibility in their contracts. The fact that some OEMs have secured this flexibility is itself an issue in the antitrust case. In the months before the DoJ filed against Microsoft, the company relaxed the terms of some of its contracts. Permission to modify the online services folder, for example, was initially granted to Gateway, and then extended to other companies, although Microsoft had initially said that Gateway was a 'special case'. This is not quite how Kempin puts it in his written testimony. In spring of last year, he says, Microsoft allowed seven companies, "Acer, Compaq, Dell, Gateway 2000, Hewlett-Packard, IBM and Packard Bell/NEC, to make two modifications to the initial Windows 98 startup sequence... Microsoft permitted these seven OEMs to replace the registration wizard in the initial Windows 98 boot sequence with products that provide a single unified end user experience and register the customer jointly with both the OEM and Microsoft "Second, Microsoft permitted these seven OEMs to add their own software for customers to sign-up for Internet access with one or more ISPs selected by the OEMs and to have that software run automatically prior to any customer opportunity to use the standard Internet Connection Wizard feature of Window 98." Kempin says that not all of these OEMs have taken advantage of all of this yet "in the five months since Microsoft granted these exceptions". He wrote his testimony in early January, which means the exceptions were granted in late July 1998, ie. his definition of spring varies from that of other mortals. But we'll let that pass. The fact that there are seven exceptions means that the rest of the industry is not, currently, allowed to make similar modifications. Kempin says permission will be granted to anybody who asks, but that there are "technical challenges" associated with the creation of software for ISP sign-up, so not a lot of companies are asking. DoJ attorney David Boies argues that Microsoft's increased flexibility has been implemented as a response to the DoJ action, and that if the case failed, Microsoft would just put the restrictions back again. But there are a couple of other things worth noting about the changes. OEMs are now permitted "to register the customer jointly with both the OEM and Microsoft". This is still more restrictive than the pre-Windows Experience OEM contracts, and still is designed to ship all registration details to Redmond. And the stuff about creating ISP sign-up software is a distraction. Microsoft's online services folder is Microsoft's mechanism for referring new Internet customers to ISPs, and adding or removing entries in it is not what one would call a technical challenge. Running a referral server is, of course, and that tends to tie the mechanism in to Microsoft's referral servers. But as we recall, various ISPs (AOL springs to mind) are always eager to get PC manufacturers to bundle sign-up software, and even willing to pay them for the privilege. So what's the problem, Joachim? If there has as yet been no stampede for the new liberal OEM contracts, mightn't there be some hurdles you're not telling us about? (Please write, gentle readers who know.) ® Complete Register trial coverage

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