Beard -
I have a lot of respect for Bork as a legal scholar but given his obvious lack of understanding of the context of this case, I believe he is being guided down the posey path. I think it is a shame to see a great legal mind being abused in this way, and I hope Bork wakes up.
Bork's factual errors are so obvious that one questions if his legal positions are equally flawed. Let's look at a few examples.
The Browser War Netscape produced the first browser, the Netscape Navigator
This is factually incorrect. Mosaic, developed at the U of I (and partly government funded) is widely accepted as the first browser. Netscape 'borrowed' (without permission) the name and much of the technology from Mosaic (back when Netscape was called Mosaic Communications Corp) despite the fact that U of I had given Spyglass the exclusive right to relicense Mosaic. This illegally deprived the U of I from license revenue from its intellectual properties and trademark. Microsoft legally licensed the original U of I mosaic code from spyglass as the basis for IE. So it is really Microsoft who is using the original code base, and Netscape which ripped off the ideas.
Microsoft's licenses for Windows 98 prohibit computer manufacturers from modifying the screen first seen when users turn on their personal computer
Also not true. I have examined the so-called 'windows experience' language in detail, and it only covers the screen which is seen the first time the computer is turned on EVER, not every time it is turned on. The user has other restrictions at first turn on also, like agreeing to the license terms. Microsoft's argument, that they should be able to provide a consistent appearance AT LEAST 1 TIME, seems reasonable, and helps keep hardware vendors from creating startup screens which might not even work and which would create a potential service nightmare for Microsoft - imagine doing telephone debugging when you have no idea what the user's screen contents might be, for example. After the very first boot-up, manufacturers and users are free to do whatever they want with the desktop. Compaq has shipped Netscape Navigator with some products since navigator was launched - it just takes slightly more thought (like about a minute's worth) to figure out how to add non-microsoft content in a way which does not violate the licensing terms.
These are just the first two gross errors in fact that I came up with in a quick scan of the document.
Bork is apparently repeating the misconceptions about both technical content and license terms that have been prepared by his employers (Sun, Netscape et. al.). I assume Bork is honest but misguided in this opinion. but he needs to do much more study on the background of the industry and the particulars of the issues he is discussing if he is to maintain his integrity. |
