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Re: Nation piece

  Andrew Shapiro, in his  previously posted article, "Hard Drive on Microsoft"
  (in The Nation this week), made several statements that I find confusing or
  at least curious. I think one problem is that the piece seems to be written
  for an audience that is not particularly interested in the details of the case
  so much as the general political implications.
  >To resolve this dispute, Judge Jackson will be
  >cast in the role of digital metaphysician, forced to ponder what, after
  >all, an operating system is. My hunch is he'll agree with Microsoft that
  >this is something that should be decided by software developers and
  >consumers, not by the court.
  A "hunch" isn't much to go on here, especially for those of us who are not
  aware of whatever it is based on. Does Shapiro know something about
  Judge Jackson that we don't?
  Maybe I'm naive here, but I don't see any reason why Jackson has to ponder
  what an operating system is. In the agreement (which we should not forget
  was really a just polite plea bargain that Microsoft consented to rather than
  openly face criminal charges in court) Microsoft was conceded the ability
  to refine and extend their operating system. On the face of it this seems
  like a reasonable concession to allow Microsoft to operate day-to-day
  without the burden of regulation (the antitrust version of parole), but such
  a concession needs to be balanced against everything else that Microsoft
  agreed not to do. Is this concession a loophole that allows Microsoft to get
  away with anything? It seems like a competent judge should be able to
  rule on that.
  Another paragraph down, Shapiro continues:
  >This would appear to be a classic example of illegal anticompetitive
  >behavior. But Judge Jackson will probably not look favorably on the
  >government's attempt to turn what is essentially a contract dispute into a
  >full-scale antitrust litigation. Moreover, Microsoft will argue that its
  >"monopoly" can no longer be assumed if Netscape and Java pose such a
  >distinct threat. In this round, then, Justice is unlikely to get the relief
  >it seeks -- preventing Microsoft from requiring Windows 95 licensees to
  >take Explorer. Even if it did, the remedy would probably be moot soon
  >because Microsoft intends to integrate a browser into future versions of
  >its OS, such as Windows 98. To prevent this, Justice would probably have to
  >initiate an entirely new antitrust lawsuit, which would take years and then
  >still might not succeed, given today's weak antitrust precedents.
  It hasn't been discussed much, but it's not obvious (at least to me) that
  Windows 98 should be considered fait accompli. If bundling IE post facto
  with Windows 95 is illegal (and it certainly is intentionally anti-competitive),
  why wouldn't the same bundling with the initial release of Windows 98 also
  be illegal? Windows 98 is just another release of Windows 95. If the Judge
  finds in favor of Justice, the logical next step would be to issue an injunction
  against Microsoft releasing Windows 98 until such a time as it clearly is
  not illegal.
  >The brilliant thing about
  >using the consent decree is that Justice can keep Microsoft on the
  >defensive, raise consumer awareness about the company's cutthroat tactics,
  >and encourage industry to come forward with evidence of unfair dealing.
  >Legal purists may not like it, but these hardball tactics can work.
  Why should "legal purists" have a problem with this? The brilliant thing about
  the consent decree is that Microsoft agreed to it and signed it, so it reduces
  a complicated antitrust case to the much simpler question of whether
  Microsoft is abiding by the terms that they agreed to operate under.
  Justice accepted those terms in good faith, while Microsoft has continued
  to do the exact same things that forced them into signing the consent decree
  in the first place.
  Moreover, if Justice fails in this case, they clearly have to go back and reopen
  the whole antitrust case. The consent decree was was a compromise to
  attempt to get some remedy now rather than face possibly endless delays
  in bringing their case to court. (Recall that IBM was able to stall the case
  against them pretty much indefinitely.) That needs to be done sooner rather
  than later.
  >expert Lloyd Constantine suggested amending the Sherman Act to make
  >leveraging monopoly power from one market into another a clear violation of
  >the statute.
  I thought it already was illegal, under the Sherman Act, to leverage monopoly
  power from one market to another. AT&T was kept out of the computer and
  software markets for years because of this. The only difference here is that
  nobody ever had to prove that AT&T was a monopoly: that was already
  established as a point of law. Microsoft's monopoly depends on how you
  define its market, which makes it disputable. (I don't know of any argument
  that Microsoft is not a monpoly that is not blatantly fallacious, but arguments
  like that do get their day in court.)
  >It would be nice if there were a simple solution to this
  >quandary--nationalize Windows? break-up Microsoft?--but there isn't.
  I don't know of anyone who wants to nationalize Windows, but there are lots
  of people who've seriously put forward plans to break up Microsoft. I don't
  think there's any practical political chance of this happening (to be effective
  one would also have to have Bill Gates drawn and quartered; Americans
  are much too fond of their rich folks for that). The more likely scenario would
  be to try to constrain Microsoft under various injunctions and consent decrees
  that would make it much harder for Microsoft to operate underhandedly. The
  other thing that should be done is to raise people's awareness that antitrust
  violations are crimes: not just sporting events where charming rogues get
  their hands slapped once in a while. In terms of material damages, antitrust
  violations are often much larger and more serious than fraud, embezzlement,
  even counterfeiting. Lawmakers are bending over backwards to make sure
  that capital murderers get swift justice, yet antitrust cases (which challenge
  crimes that continue during their prosecution) can be delayed indefinitely.
  >we can do now is press antitrust authorities at the state, federal, and
  >international levels to scrutinize Microsoft's practices (as we do the same
  >ourselves); explore the possibility of strengthening antitrust laws to
  >compensate for the regressive rulings of the last few decades and the
  >challenges of the digital era; and actively support interfaces and
  >standards that are as open and democratic as possible. Judge Jackson may
  >not find Microsoft in contempt. But if the company fails to changes its
  >ways, the consumers of the world eventually will.
  Good ending. Amen.
  Tom Hull / thull@netway.com / http://www.contex.com/ftwalk