Re: Alternative MS solutions

["Lewis A. Mettler" <lmettler@lamlaw.com>]

Roger Marquis wrote:
> 
> On Sat, 8 May 1999, Lewis A. Mettler wrote:
> > I think the observation to be made is everyone can always get access to
> > essential facilities when provided by a monopolist.
> 
> That does not appear to be the case here, unless you define everyone as
> everyone who runs MS Windows.  Most Unix shops are disheartened when MS
> buys a software company, not because it means more or less competition
> but because they (the purchased company) will be restricted from
> developing on any platform other than MS Windows and perhaps Mac. Sure
> there's a handicapped version of IE for Solaris but this exception only
> illustrates the rule.

I guess the point I was trying to make is that the "essential facilities
doctrine" only applies if you first allow or encourage a monopoly to
persist.  I much prefer to remove the monopoly.  If you write
applications in competition with Microsoft applications, having access
to Windows code might help.  But, that limited solution does little to
help competitors to the OS itself (I.E. OS/2, Unix, Linux, BeOS and the
Apple).  It is a much better choice to remove the monopoly which in turn
eliminates any need for any so called essential facility.  If you assume
that declaring Windows essential is going to solve the problem, all you
do is cement the monopoly.  I see no reason for doing that unless it is
necessary.  At one time railroads and long distance "may have" required
that.  They no longer do.  A consumer OS never did and never will. 
Apple has been around the whole time.  OS/2 has had better days but
still hangs in there.  BeOS shows some promise and Linux might actually
show up on the desktop.  If Microsoft continues to refuse to obey laws,
they can be fixed easily.


> 
> It's not just applications but servers as well.  MS has done a good job
> done restricting Samba, TAS, and Cascade from developing Windows server
> software by the use of undocumented calls and difficult to trace RPCs
> in client software from Excel to Exchange.  Windows 2000 will soon be
> released, obsoleting previous efforts to write competing Win95, 98 and
> NT server software.  No competitor can ever hope to navigate the
> boobytrapped system calls, overwritten DLLs, undocumented APIs and
> other ways which MS "innovates".

True competition means that if Microsoft makes it difficult for other
application vendors to compete they move to other platforms.  Once you
remove monopoly power, the need to abide by the monopolist demands is
also removed.

If you take the code for Windows and sell it 6 or 8 times (non
exclusively), one or more of those companies will open up access if the
standards body does not do it themselves.

Solve the monopoly, don't try to sustain it.  If you are going to write
applications to a standard make sure the standard is not controlled by a
monopolist.

> 
> Unfortunately these uncompetitive practices are being extended to new
> frontiers daily.  QuickBooks99 for example, installs an IE icon on your
> desktop even if you tell it not to.  It also calls IE regardless of
> your specified browser.  Many microsoft.com websites also display pages
> differently in non-IE browsers and one
> (http://microsoft.com/NTServer/all/Downloads.asp) even attacks Netscape
> under Unix.  This trojan web page eats 12MB of memory (permanently),
> requires 2 minutes to load (vs 15 seconds under IE), and sometimes
> crashes Netscape browsers.  The malicious HTML was designed by MS
> specifically for Netscape browsers. IE displays a different page.

No software vendor is going to sell an application if it depends upon
first purchasing some other product unless it is clearly needed by the
nature of the application.  QuickBooks99 only can exercise their nasty
tricks and force the use of IE because Microsoft has already forced all
consumers to buy it.  If it really costs $35 and half of the consumers
bought Navigator instead, those dirty tricks would cost Intuit a number
sales.

> 
> > Breaking up Microsoft along product lines and multiple times within key
> > lines such as the OS does not harm the products nor consumers.  If
> > those products are any good at all, then having real price competition
> > for those products can only benefit the consumer.
> 
> There is nothing in the record to suggest otherwise.  Though you
> can bet that Msrs Ballmer and Gates will do everything in their
> power to liberally interpret the court's decision, as they did in
> '95, breaking up MS can only benefit consumers in the long run.

Jackson already gave those guys one time to read his order and follow
it.  I doubt he will give them a second one on the very same issue. 
This time however, the court is likely to require that "it" (Jackson)
approve any restructuring or conduct plan prior to implementation.  You
can fool just about any judge once.  But, few judges like to play that
role.  The other concept in play here is that judges do not like to see
the same defendants show up in court on the very same issue.  There are
more likely to order a solution that will make the issue go away.

> 
> How many more innovating companies like Netscape, Go, Netmanage, and
> Digital Research will we lose to the selective non-enforcement of
> anti-trust law by laissez-faire judicial appointees?

I do not think it is as much a selective enforcement of the law as it is
a delayed enforcement.  Your point is quite valid.  Many companies have
bitten the dust as a result of antitrust violations by Microsoft. (Stac,
Novell, Caldera, Corel, IBM and Bristol.)  But, IBM may yet sue for
damages as a result of acts by Microsoft in regard to OS/2.  Corel has
not yet filed suit either, but do not count them out.  And, STac might
come back for more.  Good ole Quarterdeck (Symantec?) might even have a
bone or two to pick.  Once you have a case on the record determining
that Microsoft violates antitrust law right and left, lots of lawyers
start lining up clients.  IBM already has a huge legal staff just
waiting for a good reason to file for money damages.  And, do not count
out OEMs and ISVs who may have been disadvantages because they did not
go along with an illegal scheme offered by Microsoft.  

It is hard to imagine a scenario where Microsoft would wish they were
broken up into little companies, but it is not out of the question. 
Many suits could yet be filed and Microsoft now has the attention of the
DOJ, FTC and everyone else.  It may be nice to be successful, but if you
have lots of money, are determined to be a law breaker and have made
lots of enemies (who have lawyers), you may wish for something else.

> 
> Roger Marquis

-- 
Lewis A. Mettler, Esq.(Attorney and Software Developer)
lmettler@LAMLaw.com
http://www.lamlaw.com/ (web site reviews Microsoft antitrust transcripts
daily)