March 24, 2019

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Speak Now or Ever After . . . Regret Your Silence

  • December 12, 2001
  • By Dennis E. Powell

The public comment period in U.S. v. Microsoft has begun.

The proposed final settlement has been published in the Federal Register, so the clock is ticking. Those of us who wish to be heard have until January 26 to let our views be known. Today, Red Hat's CEO, Matthew Szulik, will join others in testifying before the Senate Judiciary Committee about the deal that Microsoft's lawyers cooked up when, apparently, government lawyers were thinking about something else.X Unfortunately, like most proceedings of the type, the hearing is more likely to provide politicians an opportunity to play for position than to result in anything meaningful or useful. We can't count on Linux companies to save us.

I could summarize the case and the settlement, but the words of the settlement itself are more damning than anything I could say, so let me quote from the Federal Register:

"Following a 7-day trial in late 1998 and early 1999, the United States District Court found that Microsoft had violated both sections 1 and 2 of the Sherman Act. On appeal, the United States Court of Appeals for the District of Columbia unanimously affirmed portions of the district court's finding and conclusion that Microsoft illegally maintained its operating system monopoly in violation of section 2 of the Sherman Act, but reversed and remanded other portions of the district court's determinations. Specifically, the court of appeals reversed the district court's determination that Microsoft violated section 2 by illegally attempting to monopolize the Internet browser market and remanded the district court's determination that Microsoft violated section 1 of the Sherman Act by unlawfully tying its browser to its operating system."

In short, Microsoft Corporation was found guilty at trial of having maintained an illegal operating system monopoly and of having illegally tied its Internet Explorer to its monopoly operating system. Microsoft appealed, and the appellate court threw out the guilty verdict as pertains to the browser but said yes, Microsoft did in fact illegally maintain an operating system monopoly. (The word "maintain" is critical here. It is not illegal to have an operating system monopoly, but it is illegal to do anything to keep that monopoly -- to maintain it.)

Additionally, the appellate court decided that the penalty imposed by U.S. District Judge Thomas Penfield Jackson -- that Microsoft be split into operating system and applications software companies -- was inappropriate (as indeed would be the case if tying the browser to the operating system were not illegal, as the appeals panel ruled). The court remanded the case to the trial court for imposition of a new penalty.

But the trial court would not be presided over by Thomas Penfield Jackson, who inexplicably babbled to reporters during the trial his innermost thoughts about the case and Microsoft Corporation. Following this judicial impropriety, the case was reassigned to U.S. District Judge Colleen Kollar-Kotelly. The judge is experienced in criminal law. The judge is not experienced in antitrust law. That area of the law is highly nuanced, and U.S. v. Microsoft is scarcely the kind of case that makes for a good primer in the field. Had it landed in the courtroom of an experienced antitrust judge, a Harold Green, say, there is reason to suppose that justice could have been achieved without our help. (Green is the judge who broke up the Bell telephone system in 1982.) It is no insult to Judge Kollar-Kotelly to say that this is more case than her experience equips her for, and to her credit lawyers with whom I've spoken who practice in the D.C. District say that there are actually judges there who would have been even worse.

At the end of September, Judge Kollar-Kotelly ordered the government and Microsoft to arrive at a settlement in this, the penalty phase of the litigation. She implied that doing so would somehow make it easier to defeat the Al Qaeda terrorists, or words to that effect. Microsoft's negotiators and people from the Department of Justice, who bore the title of "negotiator" even if their actions scarcely reflected it, sat in a room where, apparently, the DoJ people were kept busy acceding to everything Microsoft's negotiators asked for; the reason it took a few days, one might suppose, was so Microsoft's people could phone Redmond to get them to think up additional demands to which the government would instantly agree. According to a report in The Wall Street Journal, Microsoft cowed the DoJ into going along with all this by freely profaning the phrase "in the national interest," saying that Microsoft's demands met that specification.

The result is the proposed settlement, which would grant Microsoft its operating system monopoly -- indeed, contains wording such that it would no longer be illegal for Microsoft to maintain that monopoly -- while saying that if Microsoft wants to, it can make it easier for people to write Windows applications, but it's by no means required to do so. In short, the settlement is a travesty, an ill-advised embarrassment that flings down and dances upon the law and upon all but the most twisted notion of justice.

We have until the 26th of next month to object.

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