RIAA Fines: Not so Fine

Yesterday I told the story of RMS and his magic bread, and what it taught us about sharing; here's the negative corollary, courtesy of Charles Nesson:

Imagine a law which, in the name of deterrence, provides for a $750 fine [the lower threshold for statutory damages] for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew she was speeding.

Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put into the hands of a private, self-interested police force that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs on the order of $3,000 to $7,000 in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that almost every single one of these fines goes uncontested, regardless of whether they have merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in a federal courtroom.

That, of course, is the precisely the situation for copyright infringement: how can this be just?

Go Charlie, go.

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Microsoft on the Rocks?

Hardly, with a quarterly profit of $4.39 billion, but this is interesting:

Sales in the division selling Office and other business applications fell, hit by lower demand.

As was this:

One factor denting profits was a $1.42bn fine imposed by the European Commission for breaching competition rules.

Put like that, the fine was a significant chunk of Microsoft's profits. Maybe it actually felt it this time.

Fine Microsoft? Fine: But It's Pointless

According to The New York Times, the EU is about to thump Microsoft to the tune of a couple of million a day. I say: quite right, too. As I've written before, Microsoft just keeps playing the same old games of delay, dilatoriness and deceit. It deserves a severe corporate smacking.

But I have to add: fining Microsoft at this level will not make one jot of difference - it can't even feel a million dollars. Make it a billion a day, and maybe then it will notice.

As a result, it will not change its behaviour - which consists of taking the regulation game to the wire - nor will it change the marketplace. The only thing that will do that is if the EU - and other governments - back open source seriously to provide a counter-balance to Microsoft's otherwise unbridled power.

Microsoft: Same as It Ever Was

So Microsoft is up to its old, foxy tricks.

The European Commission is threatening the company with daily fines of "up to" two million Euros. Leaving aside the fact that "up to" includes small numbers like ten, even if Microsoft were fined the maximum amount every day, its huge cash mountain means it could happily tell the Commission to take a running jump for several decades at least.

Of course, it won't come to that. By refusing to comply with the Commission's requests, Microsoft is playing its usual game of chicken. If it wins, its gets away scot-free; but even if it loses, it can still get everything it needs.

The reason for this can be found at the end of the document linked to above. Microsoft is (cunningly) digging its feet in over the first of two issues: "complete and accurate interface documentation". The second issues concerns "the obligation for Microsoft to make the interoperability information available on reasonable terms" as the Commission press release puts it.

The giveaway here is the phrase "on reasonable terms". Back in 2001, the very guardian of the Web, the World Wide Web Consortium, proposed adopting a new patent policy framework that would allow its recommendations to be implemented using "reasonably and non-discriminatory" (RAND) licensing terms. However, as people soon pointed out, this would effectively lock out open source implementations, since RAND terms might easily be incompatible with popular licences (notably the GPL, the cornerstone of the free software world).

After a fairly bloody fight within the cyber corridors of power, good sense prevailed, and the final recommendation came down squarely in favour of royalty-free licensing: "The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a Royalty-Free (RF) basis."

So all Microsoft has to do to stymie its greatest rival - open source software - is to accede to the European Commission's request and graciously adopt "reasonable terms" for access to its interfaces - reasonable, non-discrimatory and completely incompatible with free software licences.