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MacEdition Pro News : November 8, 2001: David and Goliath

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Today’s ProNews has a fairly simple theme: the battle of the small against the big, the weak against the strong. On rare occasions the big and the strong don’t get things all their own way.

David beats Goliath...

In this hectic dog-eat-dog world, it’s always nice to see a victory for the little guy. And that’s exactly what happened for Andrew Bunner and other Webmasters publishing DeCSS source on their sites last Thursday. As noted on The Register, the injunction by the Copy Control Association that prevented Bunner from distributing his source code was turfed out by a Californian appeals court last Thursday. Costs were also awarded to the defendant Andrew Bunner. (Ooh, that’s gotta hurt!)

The court basically agreed with Bunner that the source code was an expression of ideas – that is, free speech protected by the First Amendment. Now if the source code is compiled into a collection of binary digits it’s another matter, much less using it on copyrighted content. However, DeCSS t-shirts, poetry, even DeCSS Haiku are fair game.

Full text of the court ruling:

PDF version
MS-Word version.

At MacEdition we’ve previously argued that the DMCA is a circus so it is pleasing to see that some of the finest legal minds in the US are starting to agree with us. To Andrew Bunner and all the others who stood up for their constitutional rights, we salute you.

Goliath stomps all over David...

We are of course referring to Microsoft as Goliath, and Netscape, the Department of Jellyfish and anyone else who gets in Microsoft’s way as today’s honorary David. As was first rumored on The Register last Thursday and later confirmed by CNet Friday, it seems Microsoft is likely to get away with the legal equivalent of a “tut, tut,” and a finger waggle.

To recap the last few years’ events: Microsoft is taken to court for all sorts of anticompetitive behaviour, in particular its illegal bundling of Internet Explorer with its operating system. After a procession of the most damning evidence against Microsoft coupled with a legal defense that wavers between feeble and sleazy, the findings of facts declare Microsoft guilty as charged. The recommended breakup of the company seems likely until appeals against the sentence succeed, then key charges are dropped by the Federal DOJ and an obsequious settlement suddenly looms large.

It is no exaggeration to say the entire case folded quicker than you could say “cheap suit.” We’d summarise the key points of the settlement if there were any that Microsoft won’t be able to subvert and obfuscate its way out of. Microsoft is still allowed to “bundle” software and it only has to disclose its source code for inspection by third-party developers to “qualified personnel” at “secure locations” – which sounds like an awful lot of wiggle room.

All is not quite lost however; some individual State Justice departments have refused to sign on, and the settlement also has to be approved after a Tunney Act hearing to ensure the deal is in the public’s best interest. Most disturbing of all is perhaps Judge Colleen Kollar-Kotelly (who will preside over the hearing) urging a quick settlement in light of “the recent tragic events affecting our nation.” That’s not a good reason to rush to a settlement that quite frankly is monopoly-friendly, anticompetitive and innovation-stifling.

As soft and disappointing as the final outcome seems, the settlement could always have been even sillier...

David’s still pickin’ fights with Goliath...

In the last ProNews we noted Opera’s ongoing bunfight with Microsoft over Web standards, business practices and access to Microsoft’s Web portal, MSN.com. With the notable exception of those who have http://www.microsoft.com/freedomtoinnovate/default.asp amongst their favorite bookmarks, most people would agree that on this issue Microsoft is again acting like a school bully on a little lunch-money hunt.

It seems that the bunfight isn’t over with Opera releasing another statement on November 1 airing a list of still-to-be-addressed grievances. In particular Opera was concerned with four “inaccuracies” being peddled by Microsoft:

Microsoft’s inaccuracy no. 1:
“When we developed the site, we tested it against the most popular browsers on the market.”

Opera, the third largest browser on the Web, with millions of users, was obviously forgotten along with other rival browsers.

 
Microsoft inaccuracy no. 2:
“After receiving complaints from people who reported problems accessing the site, we looked into this issue further and determined that we had wrongly classified some browsers as ‘unknown.’”

What Microsoft really was doing, was revealed early last week in an article by Sandeep Junnarkar and Joe Wilcox of News.com: “Microsoft admitted that its technology was watching for Opera strings” (Source: news.cnet.com/news/0-1005-200-7660935.html) Thus, Microsoft had not classified some browsers as “unknown” by accident; they were deliberately targeting at least Opera users.

 
Microsoft inaccuracy no. 3:
“We have now fixed this problem, enabling everyone to access MSN.com. We want to make sure that anyone can take advantage of the great services on MSN, regardless of which browser they are using. MSN.com will be available to everyone, effective immediately.”

Opera users are still denied access to some MSN’s services. An example is Carpoint.com, a part of the MSN portal. Opera users identifying their browsers as Opera are still told “Microsoft Carpoint that contains the latest new- and used-car features cannot be viewed using this browser.” If the Opera users change their browser identification to “MSIE 5”, easily done by changing the preference in File-Preferences.Networking-Browser Identification, they can gain access to Carpoint like any other browser. So, to use the service, Opera users have to mask as Internet Explorer users. MSN.com is clearly not available to everyone.

 
Microsoft inaccuracy no. 4:
“We wish to reiterate our strong support for the Web specifications developed and supported by the World Wide Web Consortium and the software industry.”

Users who try to test MSN.com at the W3C’s site for validation, validator.w3.org, will find that many pages on MSN.com do not validate.

Microsoft’s first excuse to not accept other browsers was that other browsers did not support XHTML, according to Sandeep Junkar in News.com (news.cnet.com/news/0-1005-200-7655334.html). As a rebuttal to this claim, Opera made a relevant press release available in W3C-compliant XHTML on its Web site:www.opera.com/pressreleases/xhtml/20011026.xml. As any visitor can check for himself, Opera reads it perfectly, as opposed to Internet Explorer for Windows.

The XHTML press release is readable only in Opera’s browser and Netscape 6 (although there’s also an HTML version), and is quite an embarrassing PR fiasco for Microsoft. Opera is rubbing Microsoft’s nose in their own non-compliant hypocrisy. Given the recent events with Microsoft, we’re cheering for Opera, but from a safe distance.

Looking for old ProNews segments? Check out our index at http://old.macedition.com/news/. Do you have news releases or tidbits of interest to the Macintosh professional? Send them to pronewsnotes@macedition.com.

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