In the 1998-1999 timeframe, ready to prime the pump
with their desktop offering, Be offered BeOS for free to any major computer
manufacturer willing to pre-install BeOS on machines alongside Windows. Although
few in the Be community ever knew about the discussions, Gassée says that Be was
engaged in enthusiastic discussions with Dell, Compaq, Micron, and Hitachi.
Taken together, pre-installation arrangements with vendors of this magnitude
could have had a major impact on the future of Be and BeOS. But of the four,
only Hitachi actually shipped a machine with BeOS pre-installed. The rest
apparently backed off after a closer reading of the fine print in their
Microsoft Windows License agreements. Hitachi did ship a line of machines (the
Flora Prius) with BeOS pre-installed, but made changes to the bootloader --
rendering BeOS invisible to the consumer -- before shipping. Apparently, Hitachi
received a little visit from Microsoft just before shipping the Flora Prius, and
were reminded of the terms of the license.
Be was forced to post detailed
instructions on their web site explaining to customers how to unhide their
hidden BeOS partitions. It is likely that most Flora Prius owners never even saw
the BeOS installations to which they were entitled.
Bootloader as Trade
Secret
So why aren't there any dual-boot computers for sale? The answer
lies in the nature of the relationship Microsoft maintains with hardware
vendors. More specifically, in the "Windows License" agreed to by hardware
vendors who want to include Windows on the computers they sell. This is not
the license you pretend to read and click "I Accept" to when installing Windows.
This license is not available online. This is a confidential license, seen only
by Microsoft and computer vendors. You and I can't read the license because
Microsoft classifies it as a "trade secret." The license specifies that any
machine which includes a Microsoft operating system must not also offer a
non-Microsoft operating system as a boot option. In other words, a computer that
offers to boot into Windows upon startup cannot also offer to boot into BeOS or
Linux. The hardware vendor does not get to choose which OSes to install on the
machines they sell -- Microsoft does.
"Must not?" What, does Microsoft hold
a gun to the vendor's head? Not quite, but that wouldn't be a hyperbolic
metaphor. Instead, Microsoft threatens to revoke the vendor's license to include
Windows on the machine if the bootloader license is violated. Because the world
runs on Windows, no hardware vendor can afford to ship machines that don't
include Windows alongside whatever alternative they might want to offer.
...
DOJ Misses the Point
On request of the DOJ, Gassée had
several pre-trial conversations with prosecuting attorney David Boies*L
and Assistant Attorney General Joel Klein. Gassée explained the bootloader
situation to them. They listened and heard. But they did not ask Gassée to
testify on the bootloader issue. Instead, they asked Gassée to testify on the
matter of browser integration. Gassée warned them that he would be a "dangerous
witness," since his feelings on browser integration were actually sympathetic
with Microsoft's. Gassée wanted to testify on the bootloader issue, where he
felt the core of the case really rested. Klein and Boies told Gassée he could
testify with focus on the "malicious intent" aspect of the browser integration
question, but not on the bootloader matter.
Needless to say, Gassée declined
to participate in the rest of the case. The bootloader issue was raised during
the trial, however. Raised, but not actually addressed, because Microsoft
claimed (in a court session closed to the public and the media) that the Windows
License was a "trade secret." However, Microsoft never denied that the license
exists, and never denied that it works as I've described here.
...
The
burning question, of course, is why Boies and Klein didn't want Gassée to
testify on the bootloader issue, especially when it could have substantially
helped their case? The answer provided to Gassée was that the case was by then
already too well established. Including the bootloader issue would have meant
rewriting many of the arguments and calling in a new collection of witnesses. In
other words, it wasn't convenient for the U.S. government to get to the meat of
the matter. It would have been too much of a hassle to address Microsoft's
anti-competitive behavior in its purest form. In addition, no PC OEM was willing
to testify on bootloader issues. And why would they? The threat of losing favor
with Microsoft easily would have outweighed any potential benefit from being
able to pre-load the unproven Be operating system alongside Windows on their
machines. Finally, Be didn't have the brand recognition that Netscape did;
Netscape made for a much better poster child.
* Boies, by the way, did not
even have email as of August 2000 -- the highest technology case in the land was
prosecuted by a man who could fairly be described as technologically illiterate.
...Microsoft has shaped and controlled the hardware landscape as much as
they have shaped and controlled the software landscape.
They're getting away
with it. They slipped through the DOJ trial without the bootloader issue
becoming the thorn it should have. As far as I know, the terms of the Windows
OEM License have not changed. The recommended legal remedies against Microsoft
have largely been stricken, and Microsoft is currently deflecting attention from
the real issues by agreeing to remove some icons from the XP desktop (as if that
mattered in contrast to the larger issues at stake). Klein and Boies helped to
prevent the bootloader issue from becoming a central component of the DOJ's
case. And we were never the wiser.
Nothing has changed in a
decade, and now Microsoft
is trying to pull the same crap with the ARM
manufacturers.
And was Boies complicit or just incompetent when it came to
properly
pursuing the bootloader issue?