Two unrelated legal developments are taking shape as we go to press. In one, a California appellate court unanimously shot down a trial court injunction that banned pulbication of DeCSS code that decrypts DVDs so they can be played on any computer, and not just on players manufactured by members of consumer electronics cartels. In the other, the United States and Microsoft came to a preliminary agreement that will likely bring their longstanding legal battle to an end.
At issue in the DeCSS case were were the first ammendment rights of those publishing the code, versus the trade secret rights of entertainment companies distributing the DVDs. Those companies objected specifically to the publication on the Web of DeCSS software written by programmers in the fall of 1999 as part of an effort to create a DVD player for computers running Linux. In early 2000, the DVDCCA, the movie studios' DVD licensing organization, filed a lawsuit against hundreds of programmers and web publishers seeking to ban DeCSS publication. Santa Clara County Judge William Elfving granted the injunction request on January 21, 2000. The appellate court ruled that Elfving violated the First Ammendment rights of defendant Andrew Brunner by ordering him to remove the code from his Web site. The lower court based its rulings on trade secret misappropriation even though Brunner had found the program in the public domain (on Slashdot) and simply republished it.
The case is still expected to go to trial next year before Judge Elfving.
In the matter of the United States vs. Microsoft, most pundits agreed that the settlement favored Microsoft, which the original judge on the case, Thomas Penfield Jackson, had called for breaking in two.
Dan Gillmor of the San Jose Mercury News wrote, "This deal, assuming it takes hold, is a love letter to the most arrogant and unrepentant monopolist since Standard Oil. It's an invitation to keep on plundering and whacking competition in the most important marketplace of our times, the information marketplace." John Borland of CNet called the settlement "a reward, not a remedy." Dave Winer pf Userland, an independent commercial developer that worked with Microsoft on the SOAP and XML-RPC protocols, wrote, "It clearly doesn't go far enough, and requires the government to be involved in the architecture of Microsoft's operating system and network services, such as SOAP, in an intimate and impractical way."
While the settlement would leave the company intact, it would limit Microsoft's practice of muscling hardware OEMS to distribute Windows exclusively and on highly restrictive Microsoft terms. It would also force the company the share elements of its operating systems, giving competitors a little more room to actually compete with Microsoft's own applications. Winer's "intimate and impractical" remarks refer to a "Technical Committee" that will be co-appointed by Microsoft and the Court and installed at Microsoft to oversee compliance.
The one possible upside for Linux is this language from the settlement: "Microsoft shall not retaliate against an OEM...because it is known to Microsoft that the OEM is or is contemplating...developing, distributing, promoting, using, selling, or licensing any software that competes with Microsoft Platform Software." This at least appears to limit Microsoft's ability to prevent an OEM from loading Linux on its boxes, which would conceptually open a more willing channel for Linux distribution.
- Doc Searls