February 16, 2019

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Speak Now or Ever After . . . Regret Your Silence

  • December 12, 2001
  • By Dennis E. Powell

In a minute here, I'm going to give you the information necessary to get in touch with the people receiving the public comments that under the Tunney Act must be considered before the settlement is accepted. Before that, though, some caveats.

Public opinion rarely has a place in litigation. There are exceptions -- victims or their survivors making a statement before a person found guilty is sentenced, or occasions when Lance Ito is the judge and the case is televised -- but for the most part attempts to influence a judge are at minimum frowned upon and at maximum actionable.

And even in situations where public comment is allowed, as in U.S. v. Microsoft, judges are not especially comfortable with, nor likely to be influenced by, troublesome views contrary to the way things would unfold absent those comments. The judge has already expressed her wish that this case go away expeditiously. And we're asking her to throw out the settlement and impose something better, which would complicate her life and deny her the easy way out.

What's more, you can bet that Microsoft will have every lawyer and scholar it can buy submit long and learned tracts in support of the settlement, all to the effect that the Magna Carta pales by comparison to this settlement. Which is crap -- but I've already mentioned that Microsoft will sponsor it all.

So we're talking swimming upstream here, in flood season, with concrete blocks tied to each leg and our hands tied behind our backs. The only hope we have is for a truly enormous grassroots outpouring of polite, well reasoned comments that explain why the proposed settlement is not in the public interest. I am not talking online petitions, which are not worth the virtual paper they're written on and which are actually counterproductive, in that they lull concerned people into believing that they have done something when in fact they've done nothing. I'm talking individually, written, individually worded, individually signed comments.

Such comments must, in addition to being polite, employ such features as proper spelling, decent grammar (yes, there is such a thing), a minimum of jargon, no references to what a k-rad HaX0r d00d you are, or your opinion of the judge, the Department of Justice, the government in general, or any government in general. Mine simply states that as someone familiar with computing and the computer industry, and the adverse effects of Microsoft's monopolies in these areas, I cannot see how the settlement that is proposed even pretends to remedy the antitrust violations for which Microsoft has been found culpable. The company has, I remind the judge, already been found in violation, and this is the penalty phase of the case, but the settlement contains no penalties and actually advances Microsoft's operating system monopoly. A just penalty, I continue, would at barest minimum include three additional features:

  • Any remedy seeking to prevent an extension of Microsoft's monopoly must place Microsoft products as extra-cost options in the purchase of new computers, so that the user who does not wish to purchase them is not forced to do so. 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 (which would prevent computer makers from saying that the difference in price is only a few dollars). Only then could competition come to exist in a meaningful way.

  • The specifications of Microsoft's present and future document file formats must be made public, so that documents created in Microsoft applications may be read by programs from other makers, on Microsoft's or other operating systems. This is in addition to opening the Windows application program interface (API, the set of "hooks" that allow other parties to write applications for Windows operating systems), which is already part of the proposed settlement.

  • Any Microsoft networking protocols must be published in full and approved by an independent network protocol body. This would prevent Microsoft from seizing de facto control of the Internet.

    I then point out that if the national interest is at issue, as I believe it is and as the judge has suggested it is, it is crucial that Microsoft's operating system monopoly not be extended, and in this I quote the study released a year ago by the highly respected Center for Strategic and International Studies, which pointed out that the use of Microsoft software actually poses a national security risk. In closing, I say that all are surely in agreement that the resolution of this case is of great importance, not just now but for many years to come. This suggests a careful and deliberate penalty is far more important to the health of the nation than is a hasty one.

    Your reasons may well be different. But I think you get the tone.

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