Indeed, Eolas has accomplished in court what few others, including the federal government on several occasions, have. Now that the verdict is in, one question remains: is Microsoft the real loser?
Answer? No. Instead, you, me and everyone else that uses the Internet.
The US$521 million dollars that Microsoft has been ordered to pay is pocket change compared to the potential impact on those who use and build the Web.
Although it is unclear what injunctive relief may be ordered beyond the monetary damages, it appears as though Microsoft may be left with no choice but to disable the plug-in architecture that so many Web users depend on for experiencing dynamically driven content via technologies like Adobe's Acrobat (for PDF files), Apple's QuickTime, Macromedia's Flash, RealNetworks' Real Player, and Sun's Java Virtual Machine.
Web users as well as the many content authors who may have to retroactively reprogram their interactive content should be outraged. Not to mention Apple, Macromedia, Real, Sun and other vendors of technologies that depend on the presence of the plug-in architecture.
I purposely left out one plug-in -- Microsoft Windows Media Player. Although Microsoft vigorously defended itself and has vowed to appeal the ruling, the verdict is more like a dream come true the Microsoft purists. Never in Bill Gates' or Steve Ballmer's wildest dreams could Microsoft have hatched such a dastardly plan where a tiny company successfully sues for patent infringement and, as a result, Microsoft has to turn off access to its competitors' technologies for almost every user of the Web (since most use Internet Explorer). At the very least, to keep Web-based content that was designed for the Windows Media Player from being interrupted, Microsoft could hardwire the Windows Media Player into Internet Explorer.
Imagine that. The world's dominant Web browser supporting nothing but Microsoft technologies. After several governments, hundreds of lawyers, and still more trustbusters worked for nearly a decade to put an end to Microsoft's monopolistic behaviour and predation, a federal court in Chicago hands a cornerstone of the Web experience to Microsoft on a silver platter.
Microsoft would never in a million years admit that it's actually savouring such an outcome. I didn't bother asking. To most observers the company's response so far appears to absolve it from plotting something truly evil, like taking advantage of the situation.
After the World Wide Web Consortium (W3C) learned of the ruling and scrambled together a meeting of the affected (and afflicted) parties, Microsoft was quick to communicate its options and has so far been open to suggestions on technical workarounds.
For example, Microsoft supposedly proposed inserting a simple dialog box inserted between the selection and the launch of a Java applet or an ActiveX control to work around the patent's definition of an "automated interactive experience."
According to the W3C's summary of the meeting, which was held in Macromedia's offices in San Francisco, "Microsoft presented several options that it has under consideration, and benefited from constructive discussion of these options. In addition, the meeting participants strongly supported clear communication on this matter, including establishing a developer Web site and mailing list to coordinate approaches for changes to Web sites and software, and providing early releases of software and documentation."
Those present at the meeting say that it was clear from Microsoft's presentation that the company had a fix that was set for delivery via Microsoft's Windows Update service. The fix would disable support for plug-ins in all existing installations of Internet Explorer. Conspiracy theorists will no doubt find it curious as to why Microsoft was so well prepared with an already-engineered technical response.
Of course, in a strange twist of irony, Windows Update itself works through a plug-in. By disabling plug-ins, an update delivered through Windows Update would disable Windows Update as well--a condition that Windows users would find unacceptable since that service is the primary vehicle for delivering the security updates that keep their systems shielded from threats like MSBlast.
But so far, officially, the company hasn't committed to any course of action. According to a report, Microsoft spokesperson Jim Desler said that the company has yet to make any firm decision on how it may alter Internet Explorer in reaction to the court decision. He said Microsoft is waiting to see what occurs during the ongoing post-trial process, during which a judge will decide what sort of injunction could be imposed on the company.
The worst case scenario would be if the judge orders Microsoft to not only cease distribution of Internet Explorer with the offending code, but to retroactively remove the offending code from the installed base. This would be the equivalent of a court order awarding Microsoft far more control of the Web than it already has through its browser and related technologies.
Should the judge not order retroactive removal, but require all future versions of Internet Explorer to be violation free, another hairsplitting but important detail would be the question of "What constitutes a future version of Internet Explorer?" Technically, each time Internet Explorer is patched via Windows Update (seems like once a week these days), the new "build" is a new version. The judge may not order the removal of the code from the installed base, but based on how a "new version" is defined, Microsoft may be left with no choice but to remove the code from the installed base anyway.
Aside from what the judge orders, we also have to consider what Microsoft might volunteer to do in order to ensure that the millions of interactive pages on the Web continue to hum along uninterrupted. But even here, there are no easy answers, which is why I'm inclined to give Microsoft the benefit of the doubt. In other words, I'm not ready to side with the conspiracy theorists just yet. After all, the company is reaching out for suggestions on technical solutions, working with the W3C, and has vowed to appeal the case.
Microsoft could, for example, offer to settle the case with a guarantee to pay Eolas a reasonable royalty for every future installation of Internet Explorer in exchange for the right to continue supporting the plug-in architecture.
Aside from the fact that it's nearly impossible to account for all of the world's installations of Internet Explorer, this creates a situation that everyone has been trying to avoid--giving one company or person a chokehold on the Internet. As soon as that happened, I would expect Eolas to begin extracting royalties from other browser makers such as Apple (Safari) or Opera Software (Opera). So far, no one has that sort of intellectual property-based control over the Internet, nor should they. This would not be a good solution.
Another potential solution would be for Microsoft to do what some have suggested that IBM do with SCO--buy out Eolas. I could see this now. To keep the Web, in its current instantiation from being disabled, Microsoft tries to buy out Eolas, but seeing the intellectual property-based monopoly over the Web that this would give to Microsoft, every trustbuster and regulatory commission on the globe disallows it.
So, what is Microsoft to do? Here's my suggestion.
Rather than allow the litigation and deliberations to drag out for years, dragging the Web and every user who's on it through the mud, this is a chance for Microsoft to do something that no one would expect.
Buy out Eolas and turn the ownership of the plug-in patent over to the W3C. Sure this would be an unusual move and it might set an ugly precedent (perhaps more alleged patent holders would come out of the woodwork). And there are no guarantees that Eolas would even listen to such an offer. But this sort of altruism is exactly the kind of step that Bill Gates should be undertaking in order to change the world's opinion of Microsoft for the better, and to prove that it's a world class corporate citizen.
It's somewhat ironic that at roughly the same time, the world's two most powerful computer companies are being targeted by lawsuits (SCO US$3 billion suit against IBM) that could bring more harm to corporations and end users than they ever could to Microsoft or IBM. Hopefully, both companies will use the positions that there customers put them in (willingly or not) to protect those customers from future harm.
Read the patent.
It is for "download executable". Not local plugins. This is ACTIVE X,
not scripts.
not java - which isn't executable.
not javascript
not any of the other plugins, since the must be manually downloaded and installed.
only ActiveX meets the designated qualifications - there is way too much prior-art for anything else:
email attachments (the old shell/perl scripts, and tar files containing programs)
Mosaic references, even gopher had the ability to run shell scripts.
And email going back to the beginning of the internet has had shell script/assistant interpreters.
This patent, as far as I can see, ONLY affects MICROSOFT. Nobody else.