Business Model: Moking the Justice Dept.

"Benchmarking is illegal" says MICROSOFT

If you ever wondered why this is so difficult to find benchmarks comparing Web Application servers then you are not alone.

I asked myself the question when I was looking for a Web development platform. That was before I decided to write G-WAN.

Microsoft Product Use Rights - Microsoft Servers
(EMEA)(English) (January 2003) [...]

C. Benchmark Testing.

You may not without Microsoft's prior written approval disclose to any third party 
the results of any benchmark test of Application Center, BizTalk, BizTalk Adapter
for MQSeries, BizTalk Accelerator for Financial Services, BizTalk Accelerator for 
HIPAA, BizTalk Accelerator for Suppliers, BizTalk Accelerator for RosettaNet, BizTalk
Adapter for SAP, Content Management Server, Commerce Server, HIS, IIS, ISA, 
Message Queue Server, Mobile Information Server, Project Server, SQL Server, 
or Transaction Server, or any related client software. [...]

D. Other Rights and Limitations for Certain Software.
a. Benchmarking Performance or Benchmark Testing.

You may not disclose the results of any benchmark testing regarding the Microsoft
Server Software, Device Software, or the .NET Framework to any third party without
Microsoft's prior written approval.

Just in case independent tests would not reflect their own views, MICROSOFT has made sure that nobody can prove them wrong.

Convenient, but also illegal said the U.S. Dept. of Justice.

The U.S. Dept. of Justice vs. MICROSOFT

Even if the principal anti-trust sanctions were waved by President Bush Jr. some important adjustments were made:

UNITED STATES OF AMERICA,
Plaintiff,
v.
MICROSOFT CORPORATION,
Defendant.

Civil Action No. 98-1232 (CKK)
Next Court Deadline: October 19, 2004 Status Conference [...]

D. Section III.F (ISV Promotion of Competing Software)

Plaintiffs have learned that Microsoft's contracts for the .NET Framework, a 
component of the Windows operating system used to build and run Windows-based 
applications, require prior consent from Microsoft before licensees may publish 
benchmark testing results for the .NET Framework.

Benchmark tests can be used to compare the performance of the .NET Framework to 
the performance of competing products.

A number of companies offer products based on Java technologies that compete against 
the .NET Framework. For software developers and distributors, the ability to use 
such metrics to promote competing non-Microsoft products would be quite useful in 
the marketplace.

Plaintiffs informed Microsoft that they are concerned about this restriction on 
publication of benchmark test results without Microsoft's consent since Section 
III.F.2 of the Final Judgments prohibits Microsoft from conditioning the grant 
of 'Consideration' to any software company based on its agreement not to promote 
software that competes with Microsoft operating system software or Microsoft 
middleware.

Earlier this week, Microsoft expressed a willingness to modify the provision so as 
to require prior notice to Microsoft of various details relating to the testing, 
but not Microsoft's prior consent before publishing benchmarking results.

Plaintiffs are reviewing Microsoft's response and will make every effort to bring 
this matter to a conclusion prior to the October 19 status conference before the Court.

MICROSOFT had to forget about the convenience of illegal censorship – or so said the decision of Justice.

Today's situation (2010)

Today, one could expect that the matter is settled. Unfortunately, anti-trust sanctions (like all judicial decisions) are efficient only when they are applied.

MICROSOFT VisualStudio 2008's license agreement states that:

SQL SERVER BENCHMARK TESTING. You must obtain MICROSOFT's prior written approval to
disclose to a third-party the results of any benchmark test of the SQL Server software
that accompanies this software.

The U.S. Dept. of Justice ruled 4 years before VisualStudio 2008 that the practice (of forbidding benchmarks) is illegal -but this is not preventing MICROSOFT from doing business as usual.

So, what is the message sent by MICROSOFT with this clearly illegal EULA?

Whether you are an end-user, a media or a software vendor:

• MICROSOFT is not under any real threat when it breaks the law: past sanctions never only remotely approached the benefits of the fraud;
• 
  
• You may not know about the previous U.S. ruling - even if you live in America;
• 
  
• You may not want to compromize your business relations with the explicit wills of a so powerful corporation that has 94% of the World's Destkop market share.

That may be because MICROSOFT has made 50,000 'contributions' to wikipedia, hired independent bloggers, journalists, newspapers or engineers to, among other useful things, "skew Wikipedia articles in their favor" (sic).

Read this highly-educational MICROSOFT confidential document to learn how MICROSOFT trains its employees to:

Quoting MICROSOFT "Mind Control" (from the same "confidential" report):

Quoting Bill Gates (Microsoft Memo to Pete Higgins, November 7, 1988):

And where do you think people get the information they rely on?

MICROSOFT Bing is Windows Internet Explorer's default search engine. With a 94% Desktop market share, Windows is an effective way to make people find biased information, censoring independent reviews and attacking challengers.

Yes, today's infrastructure is a scam. And yes, we can all do something about it, like voting with our wallets: invest where your money is not used to deceive you.