Bayosphere

The digital divide is real enough. But it strikes me as a problem that is relatively minor next to society’s real troubles.

More in my Sunday column.

Miami’s News

When I arrived in Miami yesterday evening — I’m here to attend a conference on technology — the front page of the Saturday Miami Herald wasn’t dominated by the Microsoft trial and the government’s proposed split up of the company. The big news here was Elian Gonzalez.

It’s a good lesson to remember. News is local. It may be an national or international event that has huge local significance, as the Microsoft trial does in Silicon Valley, or it may be something that touches the emotions of a community, as the Elian saga does in this city where Cuban immigrants dominate local politics.

If you thought one Microsoft was an antitrust headache and threat to competition in the technology industry, just wait for these two.

As expected, the Justice Department and bevy of state attorneys general asked Judge Thomas Penfield Jackson to split Microsoft (AP via SiliconValley.com) into two pieces, an Windows company and an Office-plus-everything-else company. The proposed remedy to gross abuses will prove, I fear, a classic example of fighting the last war while the enemy looks to the future.

But the remedies affecting Microsoft’s conduct look strong. I don’t see any enforcement mechanism, but the court could take care of that with contempt laws.

There was no hint of compromise, much less defeat, from Ballmer, the company’s president and chief executive, and Chairman Bill Gates on Friday. In denouncing the government’s well-leaked breakup plan, they defiantly continued to insist that Microsoft had done nothing wrong, that it would never be broken up.

They said, in effect, what they’ve been saying all along: The nation’s antitrust laws do not apply to their company’s business.

We’re a long, long way from any breakup, of course. Barring an unprecedented burst of humility at company headquarters in Redmond, Wash., Microsoft will be paying massive legal fees for some time to come as it challenges this and other antitrust lawsuits.

The dividing line between the operating systems company and everything-else company isn’t nearly as neat as the government would like us to believe, however. In fact, it’s probably best to look at this proposal as something of a draft. Even if U.S. District Judge Thomas Penfield Jackson okays a breakup, he won’t do it before Microsoft points out the difficulties in deciding what is part of the operating system and what isn’t.

Microsoft’s insistence that it can make any software a part of Windows, no matter what the intent as long as even one consumer finds it useful, is an arrogant claim. And while some kinds of Internet services do belong in an operating system, an operating system should be modular enough to allow competition for things like displaying Web pages.

Office is a powerhouse, true, and Microsoft has effectively used it to push Windows and vice versa. But monolithic products of this sort have a somewhat limited future. The future is about the Internet, and Microsoft is moving swiftly to co-opt the high ground there, too. Only some of the proposed remedies deal with the company’s plain-as-day aims, to control not just the evolving software industry but the very chokepoints of tomorrow’s communications.

Let’s dispense with one argument now — the incredible bull being slung by Microsoft’s long-suffering PR people, whose basic job over the years has been to say white is black and black is white. Jim Cullinan, Microsoft spokesman, told the Associated Press that the proposed remedies are “like telling McDonald’s that it can only sell burgers, not fries, and that it has to give away the recipe for its secret sauce.”

This is an utter crock, and Cullinan surely knows it. If McDonald’s had a 90 percent market share for fast food, erected enormous barriers to entry and bullied or bought out competitors, the government would be all over such a company — justly so.

Microsoft’s insistence that curbing its bad behavior would curb innovation is also nonsense. And Microsoft knows it.

Microsoft’s CEO is not in the mood for compromise with state and federal antitrust officials. He is in the mood to lead the company toward new vistas, and thinks it would be a crime against technology users for Microsoft to be broken up.

At least that’s what he told me over dinner the other evening. More in a special Thursday column.

Associated Press Bullies

The Associated Press is demanding that an Elian parody site be taken down (Wired News), thus proving that some journalists have absolutely no sense of humor or proportion. Sheesh.

AOL Time Warner and Competition

Leading consumer groups want to block AOL’s buyout of Time Warner (Mercury News). They have my sympathy, because this is not a good deal for consumers, but it seems unlikely that they’ll succeed.

AOL is rapidly turning into the next Microsoft — a bully that claims to be doing it all for customers but uses its dominance to run roughshod over its “partners” and the industry it leads. This buyout hastens the day when AOL will find itself across the table from the trustbusters. You can see this one coming from a long, long way off.

Pacific Bell’s Shared Resources

Those hilarious folks at Pacific Bell’s Internet services unit (PBI), who make questionable claims that their DSL connections “always fast and never shared,” probably haven’t asked their customers about the former, and they definitely didn’t check their own Web site before making running deceptive advertising about the latter.

From PBI’s Acceptable Use Policy:

PBI accounts operate on shared resources. Excessive use or abuse of these shared network resources by one customer may have a negative impact on all other customers. Misuse of network resources in a manner which impairs network performance is prohibited by this policy and may result in termination of your account.

Needless to say, Steve Ballmer, president and chief executive of Microsoft Corp., doesn’t agree with the column I wrote last Sunday, in which I called for a breakup of Microsoft. Over dinner last night, he defended the company and its tactics, saying it would prevail in court in the long run.

And he offered what he clearly believed was a one more compelling reason not to do anything so drastic as a breakup. Simply put, we — the technology users of the world — need Microsoft, because it takes a company of this size and talent and direction to solve some kinds of problems and invent some kinds of products.

He also asked me (it’s a bit weird to be interviewed by Steve Ballmer) why I came to the conclusions I did. Because, I said, I think there would be more innovation, not less, if Microsoft were split into several pieces — and because I thought a breakup was the least bad choice under the circumstances.

We agreed, as always, to disagree.

I’ll have more on this in a special column, coming up later today. Meanwhile, I’m catching a plane back to California.

The contents of this post have not been recovered from the archives yet.

The best answer to the Microsoft problem reminds me of the cliché about democracy — it’s the worst political system except for all the others. Breaking up Microsoft is the worst remedy for its ongoing antitrust abuses, except for all the others.

More in my Sunday column.

UPDATE
Dave Winer asks why it’s nutty to force Microsoft to sell off the browser software.

A Patent Abuse in the Drug Market

American taxpayers foot the bill when researchers did the basic research on what became a blockbuster drug for the Pharmacia Corporation. The company will make billions. The drug is too expensive for many people who need it. Taxpayers got zip.

If you’ve followed my recent comments on the patent system, you’ll be unsurprised to know that it was integral to this moral malpractice. Read all about it in this stunning and infuriating tale in today’s New York Times.

The Maryland Legislature has passed the most anti-consumer legislation in many years. It’s called UCITA, the Uniform Computer Information Transaction Act, and it’s going to cause users of software and online services more woe than they can possible imagine.

UCITA is bad for businesses, too, as Ed Foster notes in this week’s Infoworld column.

The sheer greed and arrogance of the forces behind this outrageous law is stunning. Some of the proponents have actually had the gall to claim that the law actually strengthens customers’ rights overall, when it does precisely the opposite.

UCITA is just one more land grab by the people who own what’s known as “intellectual property” — a move to establish total rights for the owners and no rights for the users. This is happening in a variety of arenas, including copyright, trademark and patent law. The old balance, which gave the users of intellectual property some leverage in the process, is disappearing.

Won’t the marketplace take care of this? No, it won’t. Those who say markets fix everything ignore the fact that our economic system depends on the laws that protect as well as promote competition — including intellectual property laws. Consumer protection is part of the equation. It’s why we have a Securities and Exchange Commission, to prevent sleazy financial dealings that undermine confidence in markets.

By rewriting the laws to protect big companies on one side of transactions, leaving no power at all to the people on the other side, we are tilting things in a way that ultimately will ruin confidence in the fairness and efficiency of markets. In the end, the marketplace will be harmed by all these intellectual property land grabs. But the grabbers aren’t in the business of caring about the damage they cause.

More information:

4Cite, which stands for “For a Competitive Information and Technology Economy,” is an eloquent opponent of UCITA.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) created UCITA even after its supposed partner in uniform state laws, the American Law Institute, pulled out of UCITA in protest. Here’s NCCUSL’s Web site, which glosses over the anti-consumer provisions in its description of the statute.

The headline on this story refers to Pac Bell’s DSL outage in the San Francisco Bay Area on Thursday. But look closely at the part about America Online, which is fighting email spam by blocking legitimate mail.

AOL is now so big and so powerful that its actions have huge impacts on Internet users everywhere. When it makes these kinds of arbitrary decisions — banning mail that merely looks as though it might be spam, it is going far beyond the boundaries of propriety.

No one likes spam except the sleazeballs who send it. But AOL is acting even worse in response.

Is the Justice Department or the Federal Trade Commission watching?

A publicity stunt? Or a sign of terminal disarray among the government lawyers who recently won the Microsoft antitrust trial?

I’m betting on the former as I note the brand-new “Let’s Talk: Microsoft Remedies” section of the California attorney general’s Web site. It’s absurd for Bill Lockyer, the attorney general in question, to be soliciting public comment, given that he’s doing so only eight days before the government team has to make formal recommendations to the trial judge on what sanctions should be applied to prevent Microsoft from continuing to abuse its monopoly.

“Someone might come up with a clever idea,” a spokesperson told the San Jose Mercury News, apparently with a straight face.

Some of the comments posted to the AG’s page are interesting, at least…

More on PacBell’s DSL

Craig Newmark, who runs the craigslist Bay Area community site, spotted the eJournal item about Pacific Bell’s questionable DSL claims and sent the following comment:

About ten months ago, the NoEnd group had a meeting regarding DSL and invited folks from PacBell, Covad, etc.

A lot of people, including myself, raised some issues regarding PacBell (and others’) service, in a generally constructive way.

The PacBell representatives … admitted then that:

– they didn’t have enough people to support DSL, and
– they didn’t have the tools required to support it, in particular, lacked the tools to diagnose transient problems.

They committed to letting us, and in particular, myself, know when these problems had been addressed. I don’t think any of us have heard from them since.

A few months after this, the PacBell DSL TV spots started running… I enjoyed the irony, but the number of PacBell DSL horror stories, already numerous, increased further.

Conxion Replies to Dave Winer

I linked the other day to an ongoing dispute (second item) between UserLand Software and Conxion, a Web-hosting service.

Conxion sent me this response for the record.

UPDATE: Dave Winer responds.

In the big scheme of things, Pacific Bell’s TV commercial (Quicktime 4 needed to view this) for its DSL Internet service isn’t a poster child for deceptive advertising. Nonetheless, it stretches the truth a long way.

The TV spot lampoons problems with the cable-industry’s high-speed Internet service. Because households in a neighborhood are sharing bandwidth, the ad says, there are slowdowns and other problems with service due to bandwidth-hogging and other activities. Contrast this with DSL, the spot goes on. Here’s a screen shot of what appears on screen near the end of the commercial:

There are several problems with this claim. Such as, it isn’t true.

Now, it is accurate to say that DSL isn’t a shared service between your house and what’s known as the DSLAM, or Digital Subscriber Line Access Multiplexer. That’s the equipment at the phone company Central Office (CO) that in turn sends your traffic into a bigger data pipe connecting, eventually, to the Internet backbone network and then to the servers from which you want to get information. The cable-modem systems’ architecture isn’t much different once data reaches the equivalent of the DSLAM, known in the cable world as the “head-end.”

In other words, DSL access and cable access are both shared once you get past the head-end or the DSLAM. So there’s bottleneck potential in that part of the system in both services, and the abilities of the service provider — and the number of households using the service and in what way they’re using it — determine whether the bottleneck will occur in that part of the system.

Once you get out to the larger Internet, of course, everything is shared. You can get bogged down waiting for a remote server to respond no matter how fast a local connection you have.

This is not a brief for the cable crowd, which has demonstrated a remarkable inability to manage its bandwidth in a way that prevents slowdowns, whether they’re caused by congestions in neighborhoods or past the head-end. The cable industry can provision its local data services in ways that would give home users lots of bandwidth — as much as the DSL people provide except in all but the most unusual circumstances — if they choose to do this.

A potential customer of PacBell has to ask whether PacBell is a prize when it comes to managing a network. The company’s in-house Internet service provider is becoming notorious for its e-mail outages. And a quick look at newsgroups and other Internet postings suggests the company has had its share of network slowdowns, too.

PacBell’s commercial falls into the category of accurate in one sense but hugely misleading. It’s like the way movie studios quote a positive snippet from an otherwise negative review — turning “an incredible piece of junk” into “incredible” for the quote it uses in advertisements.

PacBell isn’t alone in making misleading claims about bandwidth. I’ve heard cable-modem ads claiming vast speed increases that are almost never attained by a normal user.

Then again, it’s just advertising, right? Why should anyone believe it?

Speech versus Access?

Conxion, a Web-hosting service, has told UserLand Software to find a new hosting company — in effect, it’s firing a customer. UserLand’s Dave Winer thinks Conxion is doing it to punish him for his public statements, in which he complained about a series of outages that have plagued his site. If Conxion is getting rid of a customer because of the customer’s statements, that’s not smart business for Conxion in the long run, even though it’s legal.

For its part, Conxion says Userland’s business just isn’t cost-effective anymore. It denies that it’s trying to silence a critic.

You’ll find a running commentary of this on Dave’s Scripting News commentary and news site. Understand that you’re reading Dave’s take on the matter, though he has posted Conxion’s communications to him as well. If you’re interested, I recommend starting with the April 13 postings — and be sure to read the links to the other documents, in particular a letter he received from Conxion on April 4.

UPDATE: Conxion’s response.
And Dave’s response to that.

(Note: UserLand Software makes the software we use to run this eJournal, and Dave is a friend. Also, I’m working on a column discussing the power of ISPs relative to their customers.)