The Appeals Court Ruling: What's in it for Linux?

The big news--the headline news--is that Microsoft won't be broken up any time soon, if ever. But there's much more to the appeals court's decision in US v. Microsoft, which is unquestionably one of the most important antitrust rulings in a generation, if not the last century. Already, leading legal scholars, including Stanford University's Lawrence Lessig, are praising the decision for offering (

The appeals court's decision proves very handy indeed when it comes to figuring out which of Microsoft's actions are legal and which might represent yet another violation of the Sherman Act.

<il>Probably legal: The monopoly introduces new software that's genuinely innovative or more efficient or faster, even if it's incompatible or bundles previous products in a way that puts a competitor out of business.

<il>Probably illegal: The monopoly uses technical "dirty tricks", exclusionary licensing provisions, industry alliances or threats of retaliation that are clearly anticompetitive and have no conceivable or defensible rationale other than squashing a competitor.

The Mobile Internet Kit's EULA appears to fall into the latter category. If so, it's yet another instance of a more general pattern of anticompetitive, deceptive actions that has been undertaken by Microsoft--a pattern that led a strongly pro-business appeals court to rule unanimously that the company has systematically violated the Sherman Act.

Bryan Pfaffenberger is Associate Professor of Technology, Culture and Communication at the University of Virginia, in Charlottesville, VA. You can visit his web page, and you can browse previous Currents articles under the Currents heading here. Bryan cautions that his schedule rarely permits him to reply to all the e-mail he receives concerning his Linux Journal articles, but they're appreciated nonetheless.


[1] Properly speaking, the term "Linux" refers to the kernel originally developed by Linus Torvalds beginning in 1991; the operating system that is popularly known as "Linux" should be called GNU/Linux (for more information, see the Linux and GNU Project web site).

[2] According to the EULA, such software "includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (A) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL), (B) The Artistic License (e.g., PERL), (C) the Mozilla Public License, (D) the Netscape Public License, (E) the Sun Community Source License (SCSL), and (F) the Sun Industry Standards License (SISL)" (seen at, June 29, 2001).

[3] "Recipient's license rights to the Software are conditioned upon Recipient (i) not distributing such Software, in whole or in part, in conjunction with Potentially Viral Software [including GPL-licensed software]; and (ii) not using Potentially Viral Software (e.g. tools) to develop Recipient software which includes the Software, in whole or in part" (seen at, June 29, 2001).