DoJ Criminalizes Adoption of Open Standards

January 29th, 2000 - Chuck Flink

The news this week continues the saga of a Department of Justice uniquely gifted at tripping over the Law of Unintended Consequences.  Let me review a bit of the history of the World Wide Web and I think you’ll see what I mean.

About a decade ago, international atomic energy researchers around the word were frustrated in their efforts to exchange research papers.  The Internet provided a useful transport medium, but the act of downloading the data and formatting it for reading was pure tedium.  The whole process was frustrated by incompatible text and graphic file formats, often vendor proprietary corporate secrets, and further complicated by the arcane command language and awkward protocols used in exploring file directories on remote computers via the Internet.  A young researcher at the European Center for Energy Research (CERN) had an insight:  Why couldn’t exploring the Internet be as easy as exploring the “help” files on a Microsoft Windows PC or an Apple Macintosh?

Using public (European government) funding, Tim Berners-Lee developed a document formatting language, Hypertext Markup Language (HTML), an Internet protocol, Hypertext Transport Protocol (HTTP), and wrote working client and server programs implementing these protocols.  More importantly, he promoted their use throughout international energy research community.  Consistent with their origins in an international public-funded endeavor, the design and source code was released to the ‘public domain’.  The programs he wrote were distributed broadly via the Internet and their rapid adoption by fellow researchers gave birth to today’s World Wide Web. 

Many researchers had demonstrated the key concepts long before.  Hyperlinks had transformed ordinary text into hypertext years earlier.  Many other researchers had implemented network transport protocols and standard document formatting languages.  Berners-Lee elegantly brought these ideas together to form the symphony we now enjoy as the World Wide Web, gaining for himself the gratitude and respect of generations, and the title: father of the World Wide Web.

 In Illinois, a graduate student, also working on government-funded energy research, followed Berners-Lee’s project with interest.  He led a development team attempting to extend the crude HTML/HTTP client software into a more graphically oriented viewer capable of integrating into one window all the various document and graphic formats in use by researchers at the time.  His program was named “Mosaic”, a very appropriate choice given the visual way it spliced together various file images to form a consistent picture.  Mosaic was also the first HTML browser ported to the popular Windows platform.  The graduate student was Marc Andreessen, later a co-founder of the Netscape Corporation.  The success of Mosaic, and its widespread availability on inexpensive PCs via free download over the Internet, led to the popular view that Andreessen deserved the title of “father of the browser”.

 Now if there were any justice in this world, since all this work was done on public funding, all of this software would have been free to the public.  A clause in the contract with the University of Illinois, however, granted the rights to any intellectual property developed under that grant to the university.  The university chose to earn revenue from their “ownership” of Mosaic by restrictive licensing of the Mosaic source code.  And thus begins the very American “money chase” that has given us the battle over the meaning of the words “browser” and “operating system” and has led our DoJ to apparently criminalize the adoption of open standards!

 Microsoft and Apple both had window-based tools that allowed their users to explore the contents of file directories on their PCs and on remote PCs connected via a network.  These tools and networks used proprietary file formats and protocols, but clearly demonstrated (especially with respect to ‘help’ files) all the concepts that were put together by Berners-Lee and Andreessen in the development of the WWW and the Mosaic browser.  The government-funded work by Berners-Lee formed the basis for a set of international standards that effectively made obsolete the proprietary formats and protocols used by Apple and Microsoft.  Rather than attempting to sue the international governments involved for damaging their business prospects, Microsoft adopted the HTML, HTTP, JPEG, GIF, and many other standards developed for the Internet and the World Wide Web and incorporated them in software for Windows and the Macintosh.  Microsoft went so far as to actually replace proprietary formats (e.g. the Windows 3.x ‘help file’ format) with this new technology and adopt new uses for the technology (e.g. the HTML template files used to customize the views of directories and the ‘active desktop’ in Windows 98).  Consistent with the concept of these being free, public standards, these improvements to Windows were releases as free add-ons or upgrades to the Windows 95 and a no-cost option in Win98.

There may well be many good reasons to split Microsoft into competing companies.  There may well be good reasons to charge Microsoft with criminal wrongdoing in other anti-competitive activities.  But if it comes to declaring the integration of “browser” functionality into Windows was illegal, the government, not Microsoft, is committing the crime.

We will eventually hear how this case is decided.  No one will ask my opinion before deciding.  Though I may well be whistling in the wind, here are my recommendations:

1)      The DoJ should establish a rule that no company can be prosecuted for adopting and integrating public domain standards in their product, no matter what the impact on competitors may be;

2)      Companies founded to exploit public domain standards should clearly recognize the contributions of their public benefactors and declare the citizens of funding nations as shareholders, deserving of a share in any resulting profits proportional to the investment in R&D funding resulting in the standard;

3)      Vertically integrated companies like Microsoft should be required to organize themselves as independent operational groups with financial and organizational barriers against the trading of ‘insider information’ between layers.

This last requirement should be designed to allow 3^rd parties to enter into fair competition at any level:  hardware, firmware, device driver, operating system, middleware, application, etc. with equal access to interface specifications, design documentation, operational philosophy and future plans.  Competition in the development of integrated solutions should be the objective.  Competing incompatible solutions do not necessarily bring value to the market and should not be automatically deemed to be in the public good.  The marketplace is well capable of determining the value of compatibility and should be allowed to decide this freely. 

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