SCN: Microsoft

[Steve]

x-no-archive: yes

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(Lawrence Lessig, NY Times)---Four years almost to the day after 
the government first sued Microsoft for violating the terms of its 
antitrust settlement, the United States ended its prosecution of 
Microsoft with another proposed settlement. This consent decree 
is weaker than the one Microsoft had apparently agreed to before 
a United States Court of Appeals unanimously affirmed the finding 
of liability against the company last summer. Some may wonder 
how you get a better deal after being found guilty than you did 
before.  

But the test of this agreement is not whether it is stronger or 
weaker than the last. The test is whether it will work. And while the 
core idea of this agreement is a good one, the execution plainly is 
not.  

A federal judge is scheduled to hear arguments about the 
settlement early next year. Nine states, including California and 
Massachusetts, have refused to support the consent decree, while 
nine others, including New York, agreed to it only after demanding -
and receiving - revisions.  

The idea behind the deal is to use the market to police Microsoft's 
monopoly. It does this by assuring that computer manufacturers 
and software vendors remain free to offer and support non-
Microsoft software without fear of punishment by Microsoft. Dell or 
Compaq has the right to "bundle" browsers from Netscape or 
media players from Apple into its computers regardless of the mix 
of programs that Microsoft has built into its Windows operating 
system. Autonomy from Microsoft is thus the essence of the plan.  

If this plan could be made to work, it would be the ideal remedy to 
this four-year struggle. Government regulators can't know what 
should or should not be in an operating system; the market should 
make that choice. By guaranteeing competitors the freedom to 
choose which software is built into the operating system, the 
decree would allow the market to choose how computer 
technology should evolve.  

The problem with the deal, however, is in the execution. Bill Gates, 
Microsoft's chairman, said last week that his company now 
understands the "concerns" the government had, and four years 
after those concerns were first raised, it has now agreed to resolve 
them.  

Four years is an eternity in the technology world. Thus one might 
have expected the government to be very careful to assure that 
this decree allows for the quick resolution of disputes without 
launching another four-year war. But it does not. In fact, the 
government has no effective way to assure compliance without 
launching a federal case.  

For example, Microsoft is not permitted to "retaliate" against 
software or hardware vendors that are "developing, using, 
distributing, promoting or supporting any software that competes 
with Microsoft." This requirement presumably leaves open 
Microsoft's right to retaliate against developers or vendors who are 
not competitors. Perhaps they make software that the company 
specifically does not want in the Windows operating system, for 
example. 

And if a software vendor complains that Microsoft has wrongfully 
retaliated against it, how is that claim to be resolved? If Microsoft 
includes a feature in a new version of Windows that matches a 
feature another software maker had already designed to work with 
Windows, is that improper retaliation - or simply competition?  

The decree establishes a "technical committee" composed of three 
"experts in software design and programming" who will work at 
Microsoft's offices and have complete access to Microsoft's 
records. But computer experts have no special ability to interpret 
whether Microsoft has wrongfully "retaliated." That requires an 
interpretation of the decree. Nor would they have any power to 
remedy a wrongful retaliation. At most, they could complain to the 
Justice Department and get it to bring another case against 
Microsoft.  

The decree thus does nothing to establish a more efficient or direct 
way to hold Microsoft to its promises. It instead relies upon the 
company's good faith in living up to the letter and the spirit of the 
agreement - and of the law. 

But Microsoft took four years to understand the "concerns" that led 
the government to bring this case in the first place. It has 
demonstrated that it will fight to the end to be free of the law, even 
after a unanimous Court of Appeals concluded that the company's 
view of the law is wrong. And even then, Microsoft has not yet 
acknowledged the principle behind the Court of Appeals decision. 
To read its press releases, you would think it won the case.  

This case should not conclude until there is a better plan to assure 
that it won't come back. "Trust us" is not a better plan.  


Copyright 2001 The New York Times Company





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