April 24, 2019

.comment: The Settlement Sucks - page 2

No Bright Aspect

  • November 7, 2001
  • By Dennis E. Powell

What ought the objection comprise?

It is not difficult at all to frame the argument against the proposed settlement, in that it cedes a total operating system monopoly to Microsoft and in so doing achieves what Microsoft was brought to trial for having tried to achieve. Were the judge and Justice interested in justice, that argument would win the day. They are not, so the best we can hope to do is make them admit it.

Points that I would raise include these:

  • Computer users who wish to employ a non-Microsoft operating system nevertheless now must pay for Microsoft software when buying a new computer. Any remedy seeking to prevent an illegal extension of Microsoft's monopoly must prohibit preload agreements, placing Microsoft products as extra-cost options, so that the user who does not wish to purchase Microsoft products is not forced to do so.

  • Opening the Windows API falls short of leveling the field; a just settlement would require that Microsoft's file formats be made public.

  • To encourage competition, a just settlement would enjoin Microsoft from selling its software to anyone at a lower price than it sells it to anyone else. This means that for the price differential between a new computer with Microsoft software and one without, a computer seller must offer the software without the computer.

Those three items would turn an unconscionably bad settlement into a good one. But if any of them is missing, the settlement does not serve either the letter or the spirit of the law.

If you are of an activist bent, you might want to avail yourself of the public comment period. When the comment period is opened, I'll make sure the details of how to participate are available here.

Meanwhile, if yours is one of the states holding out for a better deal, a quick letter to your state's attorney general, arguing for the points above, might do some good. They should be on paper, in a stamped envelope, with your name and address included. Email doesn't make the nut in situations like this one; a fax might, but phone ahead first to make sure.

As this whole sorry saga has unfolded, I never thought that we would get everything we wanted or even everything that an unbiased referee would rule that justice required. But I did always think that we would come part of the way, and never, ever, did I suppose that career Justice lawyers would roll over and play dead, leaving Microsoft actually better off than it was before. Now I'm surprised that the settlement doesn't include Microsoft's legal costs. Maybe it well.

The settlement could not be much worse. It is probably as good as done.

But we don't have to take it silently.

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