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MS settlement rotten with loopholes

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As we learned Friday, Judge CKK has conditionally accepted most of the MS/DoJ antitrust settlement, effectively shutting down the unsettling states unless they can find solid grounds for an appeal. "The court is satisfied that the parties have reached a settlement which comports with the public interest," she wrote.

There will be no breakup, no forced disclosures of source code, no bare-bones Windows.

There are, to be sure, a number of provisions which ought to be useful in cultivating a slightly more diverse software marketplace, only most of them are so rotten with loopholes that MS' competitors are basically where they were at the outset of this four-year fiasco; that is, pretty well forced to rely on Redmond's renowned openness, good will and honest competitive spirit.

First off, the technical committee originally envisioned to verify Redmond's compliance with the deal it helped craft will be replaced with a committee of MS board members, CKK has determined. This, she imagines, will provide adequate oversight, apparently on the assumption that the company has now been greatly humbled by the rigors of legal warfare. The assumption is a poor one; MS will burn immense amounts of capital in exchange for the right to gloat; and the DoJ cave-in is nothing if not gloatworthy. Any notion that the board will be disinclined to soft-pedal borderline issues which an outside committee might flag for further scrutiny based on a 'once bitten twice shy' basis is wishful thinking.

In a small concession to the states, CKK decided that the court should retain jurisdiction over the matter for five years and have the authority to issue orders ensuring compliance with the settlement and to punish infractions, all of which will be eagerly brought to its attention by the MS board. The agreement, she wrote, would not be fundamentally changed by adding this condition.

Another item of note is CKK's insistence that MS open its Windows communications protocols, to ensure that non-MS servers will work just as smoothly for Windows users as they would if they were running IIS. The loophole here is the emphasis on Windows as the locus of compatibility and interoperability. If it wanted to wiggle, MS could try to say that IE, for example, is not covered under the requirement; whatever tweaks it's received to make IIS look good don't have to be revealed because it's not Windows. The company had argued in CKK's courtroom, with numerous internal inconsistencies, essentially that IE is Windows (by way of explaining why a modular OS would be impossible), but whether IE will continue to be Windows when a competitor comes knocking for the necessary technical information is another matter altogether.

The schedule for opening certain APIs has been moved up by six months, which ought to be a very good thing, except that virtually any API or communications protocol, or indeed, "any documentation," may be withheld on the pretext that releasing it could endanger security, third-party secrets, or DRM schemes -- or if the US government wants it withheld for any reason whatsoever.

"No provision of this Final Judgment shall: 1. Require Microsoft to document, disclose or license to third parties: (a) portions of APIs or Documentation or portions or layers of Communications Protocols the disclosure of which would compromise the security of a particular installation or group of installations of anti-piracy, anti-virus, software licensing, digital rights management, encryption or authentication systems, including without limitation, keys, authorization tokens or enforcement criteria; or (b) any API, interface or other information related to any Microsoft product if lawfully directed not to do so by a governmental agency of competent jurisdiction."

That pretty much covers anything MS doesn't feel like disclosing. It's hard to imagine the API that can't be said to have some bearing on at least one of those generous opt-outs. This, more than anything, shows what an absolute cave-in the DoJ settlement really is.

And what's up with this loophole for government agencies? What stake has the US government got in keeping parts of Windows secret? Perhaps there's something to that old NSA_key story after all.... ®

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