A botched case
The outcome of the antitrust lawsuit against Microsoft gives the company license to operate with impunity
“YOUR HONOR, we find the defendant incredibly guilty!”
— Jury foreman, Mel Brooks’ The Producers
NEXT TIME I get a traffic ticket, here’s what I’ll say in court: “Your honor, the court has found me guilty. I disagree. Also, I disagree in principle with the existence of speed limits on our nation’s highways. Several theorists claim that highway traffic should be self-regulating — we should allow the overall flow of traffic to determine each driver’s speed.
“In the case of the U.S. Department of Justice v. Microsoft, the courts established the precedent that when the defendant disagrees with both the law and the finding of the court, the prosecution and guilty party must negotiate as equals to define a settlement agreeable to both parties. I request the court to handle this case the same way.”
Think it will work?
Me neither.
Regardless of whether you think antitrust laws are a mistake, obsolete, or inapplicable to the software industry and regardless of whether you personally think Microsoft was actually guilty or not, the outcome of the Department of Justice v. Microsoft was unambiguously disgraceful. With the departure of Joel Klein as lead prosecutor, and U.S. District Judge Thomas Penfield Jackson — the Lance Ito of antitrust — as judge, the fix was in. Microsoft said, “Play dead!” and our government’s executive branch — controlled, ironically enough, by the law ‘n order party — obeyed. From this point forward, Microsoft has no constraints in its use of nonmarket forces to buttress its market position.
As just one example, take a look at Microsoft’s investment in Corel. Almost immediately, Corel discontinued WordPerfect Office for Linux. Because Apple, in its ongoing quest for marketplace irrelevance, persistently snubs corporate IT, Linux is the only significant threat to Windows on the desktop. Which means that just as CIOs and CTOs — faced with increasingly onerous licensing terms from Microsoft — are searching for a credible way to at least threaten to take their business elsewhere, Corel is running away from the opportunity. Instead, it’s trying to sell WordPerfect head-to-head against Microsoft in the Windows environment — a battle it has already lost.
Pardon me for being suspicious.
For several years I’ve predicted an impending implosion for Microsoft. I still see serious problems for the company: Microsoft is hemmed in on the server front and has such limited potential for growth on the desktop that it has turned to the only alternative it could think of: predatory licensing.
Its problems, however, have receded now that our government has a “for rent” sign in the front yard that lets Microsoft obey — and require its customers and competitors to obey — only those laws it finds convenient.
