[linux-elitists] News conference, demonstrations, and talks in mid-July 2003

Jay Sulzberger jays@panix.com
Wed Jul 2 20:40:35 PDT 2003

On Wed, 2 Jul 2003, Don Marti wrote:

> begin Jay Sulzberger quotation of Wed, Jul 02, 2003 at 03:22:56PM -0400:
> > TCPA does not permit free booting.  Perhaps it might be said to do so, but
> > only in the same sense as Microsoft says that the EULA gets you a refund.
> You're going to have to supply a meaningful definition for "free
> booting" in order for people to understand the above assertion.
> Do you mean something other than "boot an arbitrary operating
> system, possibly written or modified by the user, without having
> to get permission from anyone?"
> If you don't have a signed OS, a TCPA-equipped system seems not to
> lack any of the functionality of a non-TCPA system.   Please correct
> me if I'm wrong.
> > With the dispositive evidence provided by the Xbox and the Refund Clause,
> > our side must state the truth: An Englobulated computer will not free boot,
> > and an Englobulated Net will end free speech and free assembly for the
> > whole world.
> I don't doubt you on the generalities, but I'm having trouble
> reconciling the "free boot" part with the TCPA documentation and
> with what I've heard from Seth Schoen.
> --
> Don Marti                Reform copyright law -- return abandoned works

Don, these are important questions.  I think I shall not be able to respond
adequately this evening.  I have been trying to prepare a short statement
about this disagreement between me and part of the EFF, and we hope to
present this statement at the first Free Booter's Press Conference and
Demonstration.  But below is an too short outline of one argument that a
Palladiated system will not be free bootable.

Why does one part of the EFF believe Microsoft's claim that you will be
able to run a free operating system on Palladiated hardware?  Microsoft
also claims that you get a refund if you do not run the pre-loaded
Microsoft OS on your Toshiba computer.  Microsoft and Intel have spent
hundreds of millions of dollars, likely billions, to produce a system which
will, by changing one bit on the motherboard, be limited to boot only
Microsoft OSes.  Further much time, effort, and money has been spent to
force Palladium hardware into every IBM style peecee to be sold over the
next few years.  If the Palladium hardware actually were to allow free
booting, then what is the point of this large scale project?  Note that
today Microsoft sells a personal computer, the so-called "Xbox", which is
designed to run only Microsoft OSes.  In the Xbox is a primitive DRM
system, similar in basic design objective to Palladium.  The design
objective is to give Microsoft complete control over what boots on the box.
Microsoft has stated that Microsoft will not allow any other OS to boot on
the box.  So, apart from the incompetence of the DRM in the Xbox, how is
the Xbox different from a Palladiated system?  Today there is exactly one
bit of difference: Microsoft claims that you will be able to boot what you
choose on a Palladiated system.

Now Microsoft also claims that you get a refund if you do not use the
pre-loaded Microsoft OS on Dell, IBM, Toshiba home computers.  Indeed,
Microsoft makes a specific promise, in strict legal terms, to each and
every individual who buys a Dell, IBM, Toshiba home computer, that the
individual will get their refund if they do not run the Microsoft OS.  To
repeat: these millions of promises are in the form of clauses in the EULAs.
Yet Microsoft and Dell, IBM, Toshiba have thousands of times refused to
honor these promises.  Compare the millions of specific promises to
specific indviduals, with whom Microsoft and Dell, IBM, Toshiba stand in a
relation of licensing, with the white papers on Palladium, and the press
releases about Palladium.  Neither white papers nor press releases are
legal instruments, and if they were, we are certainly not party to any
agreements claimed in them.  And I do not believe that private promises
made to individuals by employees of Microsoft (indeed acting without
authorization from Microsoft) will be found binding in court.  But part of
the EFF believes that we should accept as more effectively constraining
Microsoft these white papers, press releases, and private personal
promises, than hundreds of millions of contracts.

The argument above is not the most powerful against Palladium, but it is
the one that survives compression the best, so I compressed it very much,
in order that those at the EFF who disagree may start preparing their

My next two argument-outlines against Palladium will be based upon an
analysis of market effects, and upon the single main principle upon which
American constitutional law is founded.


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