believes that there is no need to create special rules for the GII; rather, the current laws applying to the software industry (which have served Microsoft extremely well) are adequate for the GII environment.
Microsoft will achieve "openness" by voluntarily licensing its application program interface to all third party application developers. Thus, anyone who wishes to develop a product that attaches to a Microsoft operating system will be able to do so. Microsoft, however, has not agree to license its interface specifications to firms seeking to develop operating systems that compete directly with Microsoft operating systems.4
Microsoft's narrow definition of opennesspermitting attachmentflows from its business plan. Microsoft hopes to dominate the market for the operating system of the "set-top box"the entry point of the information infrastructure into individual homes or businesses. By controlling the standard for the set-top box operating system, Microsoft will be able to exercise control over access to the entire infrastructure. Microsoft wants to encourage third party vendors to develop applications that will run on its operating system; the more applications, the more desirable the operating system becomes and the more likely that the market will adopt it as a de facto standard. At the same time, Microsoft wants to prevent the development of a competing set-top box operating system that is compatible with all the Microsoft-compatible applications.
The Computer Systems Policy Project (CSPP), whose members include computer systems vendors such as Apple and IBM, shares many of the same intellectual property assumptions as Microsoft. Thus, it believes that hardware interfaces specifications are patentable and software interfaces specifications are both patentable and copyrightable. The CSPP differs from Microsoft in that it believes that special rules should apply in the information infrastructure environment. Specifically, the CSPP believes that the owner of an interface that is adopted as an infrastructure standard should be required to license it on reasonable and nondiscriminatory terms, not only to developers of attaching products but also to developers of competing products. That is, the interface specifications should be readily available to all vendors so that they could "build products that are compatible with both sides of the interface."5 Further, the proprietor of an interface standard should be able to revise it only with timely notice or public process.
The CSPP position represents an underlying fear of Microsoft's market power. By requiring the licensing of the interface standards to the developers of competing as well as attaching products, CSPP hopes to prevent a Microsoft set-top box operating system monopoly even if the Microsoft interfaces emerge as the industry standard. Moreover, by permitting revision of standard interfaces only with timely notice, CSPP hopes to prevent the lead time advantages Microsoft's applications developers would otherwise have over third party developers. (These advantages are one of the subjects of the ongoing litigation over the Microsoft consent decree.)
The CSPP approach may work well enough for de jure standards set by a standards body. The standards body may, through negotiations, extract significant concessions from the proprietor. But what if the market, as opposed to a standards body, adopts Microsoft's set-top box operating system as a de facto standard? Pursuant to what authority will Microsoft be forced to license its interface specifications to competitors, or provide timely notice of upcoming revisions? Moreover, who will determine the "reasonableness" of the license fees demanded by Microsoft? Indeed, CSPP itself recognizes the shortcomings of its approach. It has conceded that in GII markets that are not competitive, the government may need to intervene "to ensure that critical interfaces are open."6 Nonetheless, the CSPP continues to insist that the government "refrain from implementing compulsory licensing related to standards."7
The American Committee for Interoperable Systems (ACIS), whose members include Storage Technology, AT&T Global Information Solutions, Amdahl, and Broderbund Software, starts from a somewhat different intellectual property assumption than Microsoft and CSPP. While it agrees that hardware and software interface specifications are patentable, it doubts that many such specifications will meet the rigorous statutory