While I object to censorship clauses in EULAs on general principle, not to mention this thing called the First Amendment, there are those who feel it's only fair that software vendors at least be allowed to restrict what their competitors can say about their products. That's why it's a bit of a surprise to discover that Microsoft seems to be taking the opposite approach. It appears that other software vendors no longer are bound to get Microsoft's permission to publish benchmark results, but Microsoft still expects its customers to do so.
In my "Getting the Facts on Microsoft Benchmarks" story a few weeks ago, I noted that Microsoft seemed to be taking unfair advantage of the .NET Framework censorship clause in the EULA for Windows Server 2003 and other products. Several readers responded to that story with the news that, as they understood it, Microsoft has stated it is removing the restriction on publishing benchmark results of the .NET Framework. As it turns out, that's not quite accurate, but the truth is still rather interesting.
What the readers were referring to was a statement Microsoft made in October in the "Joint Status Report on Microsoft's Compliance with the Final Judgments" report issued as part of the settlement of the anti-trust actions. In the section on ISV (Independent Software Vendor) Promotion of Competing Software, plaintiffs to the anti-trust actions noted that:
"Plaintiffs have learned that Microsoft's contracts for the .NET Framework, a component of the Windows operating system used to build and run Windows-based applications, require prior consent from Microsoft before licensees may publish benchmark testing results for the .NET Framework. Benchmark tests can be used to compare the performance of the .NET Framework to the performance of competing products. A number of companies offer products based on Java technologies that compete against the .NET Framework. For software developers and distributors, the ability to use such metrics to promote competing non-Microsoft products would be quite useful in the marketplace."
Under the anti-trust settlement, the plaintiffs noted that Microsoft is not supposed to put any conditions on their agreements with ISVs that would restrict them from promoting products that compete with Microsoft's operating systems or middleware. Microsoft apparently then told them it would be willing to modify the benchmarking provision to say ISVs should give Microsoft prior notice of their test results, but they would not need Microsoft's consent. In its part of the report, Microsoft declared:
"Microsoft is working with the Plaintiffs to address their stated concerns regarding the benchmarking provision in Microsoft's licenses for its .NET Framework software. Microsoft does not object to benchmarking of non-Microsoft software against the .NET Framework. Microsoft's objective in its discussions with Plaintiffs is to ensure that the developer community is provided with benchmarking results that are accurate. The company has proposed a revision to the benchmarking provision of the .NET Framework licensee that states explicitly that benchmarking is permitted, provided the licensee provides testing details to Microsoft so that it can attempt to replicate the results before they are published."
Basically, the software companies were arguing the same thing I've been saying about the unfairness of Microsoft publishing benchmarks of Linux in its "Get the Facts" campaign while its EULAs forbid open source companies from returning the favor. Requiring ISVs to get Microsoft's permission to publish .NET Framework is obviously an anti-competitive restriction on their ability to promote alternatives to Microsoft's platforms. And, since the anti-trust settlement mandates that ISVs be allowed to promote competing products, Microsoft had to concede a point. So while it still wants to be notified before publication, the ISVs don't actually have to get Microsoft's approval of the results.
But does this mean Microsoft is also saying that customers as well as ISVs need only give Redmond prior notice rather than get permission? After all, if competitors don't have to get Microsoft's consent, surely customers shouldn't either. And don't forget that we have seen instances where Microsoft effectively prevented customers from publishing benchmarks by simply not responding to their requests -- so the distinction between notice and consent would make a difference in some cases.
Unfortunately, though, the answer appears to be no. Microsoft can change the terms of its licensing relationships with ISVs without changing its EULAs. And, for the time being at least, that seems to be all Microsoft intends to do. "Microsoft has nothing to announce at this particular time regarding making any changes to its EULAs," was a Microsoft spokesperson's answer to my query as to whether the changes Microsoft is making to its ISV contracts will also be made in the license agreements for its customers.
So which do you think is the more anti-competitive behavior - restricting the speech of your competitors or your customers? Post your comments here or write me at Foster@gripe2ed.com. And, while you're about it, perhaps you might want to send a copy to an anti-trust enforcement agency near you.
12:44:06 AM 
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