April 25, 2019

.comment: Judge Robert Bork on the Microsoft Settlement - page 2

A Leading Legal Thinker Weighs In

  • January 23, 2002
  • By Dennis E. Powell

Among my interests in talking with Judge Bork was his appraisal of the efficacy of public comments in Tunney Act cases, of which U.S. v. Microsoft is one. As frequent readers of this column know, I've encouraged Linux users (and Windows users, too -- the Microsoft monopoly does them no favor) to write and transmit their comments as provided by the Tunney Act, and as my mailbox proves, many have done just that. But will it make any difference?

"It depends, I suppose, on how intelligent the comment is and how serious the judge is," he said. "The public comment will go through the Department of Justice, and be forwarded to the judge, some of them with the Department of Justice's comments."

Still, one case in which Tunney Act comments were cited was overturned. That case was the first U.S. v. Microsoft, in which U.S. District Judge Stanley Sporkin refused to accept the ineffectual settlement arrived at by the company and the Department of Justice. (There is a significant difference between that case and the current one: in the first case, the settlement was achieved, amid clouded and suspicious dealings, before the case had gone to trial. This time the trial has taken place and the government has won -- and that victory already has been upheld on appeal.) Sporkin refused to approve the settlement, he said, because of information he had received that had convinced him, absent rebuttal from government and company, that the settlement was not in the public interest. The Department of Justice and Microsoft filed a joint appeal, and Sporkin was overturned.

"Of course Sporkin got into that case, as you may know, and took upon himself functions that were not, strictly speaking, Tunney Act functions," said Bork. "He became a party in the case, practically. He told the government that they should have brought a different case." In short, the problems with Sporkin's ruling were other than his use of information gathered during the public comment period.

Some observers have taken heart in the refusal of nine states and the District of Columbia to become parties to the settlement, agreed to by Microsoft, the U.S. Department of Justice, and the attorneys general of the remaining states that had joined in the initial antitrust lawsuit. I asked Judge Bork if this is in fact significant. He said that it's impossible to tell.

"If you can find out where the states are going to go, let me know," he said. "because I don't know, either."

Bork having already offered the opinion that the settlement now before the court falls short of any positive effect and in fact probably does a great deal of harm, I asked him what kind of remedy would be appropriate.

"My initial response was, break 'em up," he replied. "A structural remedy. Dissolution into parts that could compete with each other.

"But that seems to be not in the cards now; I don't think the judge is going to do that if the government doesn't ask for it, and may not do it even if the government did ask for it.

"That's not going to happen, so I think we're stuck with a behavioral remedy which would have to be -- even if it tried to do something, even if it tried -- hard to write because as the technology changed Microsoft has shown a great ingenuity in getting around things in the past. But whatever difficulties there would be in a properly drawn behavioral remedy, this is not a properly drawn one."

The settlement was made in response to a Sept. 28 order from Judge Coleen Kollar-Kotelly, and my reading of it is that rather than punish Microsoft for illegally maintaining its monopoly and preventing it from further illegal action, it makes the company's operating system monopoly a matter of law. I was curious as to whether Judge Bork agreed.

"Oh, yes," he said. "And I think it gives it a clear road to further monopolies. They can do to all kinds of products now what they did to the browser."

Some of the remedies that various observers, including me, have thought appropriate are for Microsoft's preload agreements to be vacated and new ones prohibited, the opening of Microsoft's office suite data file formats, and the submission of present and future Microsoft networking protocols to an independent open standards body. But in that these might impinge on companies not party to the suit, such as computer equipment makers, I've wondered if all of these possibilities are within Judge Kollar-Kotelly's authority.

"Why not?" Judge Bork said. "Microsoft's situation depends entirely on the fact that it has a monopoly and that it has maintained that monopoly illegally. If you didn't have a monopoly, or you kept it legally, the rules wouldn't be the same for you."

Anyone who has covered legal proceedings knows that he is on thin ice when asking even the most knowledgeable people to predict the ultimate outcome. I did it anyway.

"You got me on a bad day," said Bork. "And any day would be a bad day for a question like that.

"What's likely to come out if it? I have no idea. It depends entirely upon how seriously the judge takes this thing. I hope she doesn't share the government's evident desire just to kick the thing away and get rid of it. This is a painful case -- I don't think Judge Jackson wanted to see it again. It's a lot of work, and it's hard to understand, and if she takes the line that 'if the government's satisfied, the hell with it,' then it's all over. I don't know her well enough to know how she'll react."

But if that comes to pass, I think every non-lawyer who has read the settlement agrees, Microsoft has gotten away, not with a slap on the wrist but with full permission to do what it's been doing, and more. Wouldn't approval of the settlement mean smooth sailing for Microsoft?

"Oh, I think so," Bork said. "I think it would be rocky sailing for a lot of other companies."

We have been led for years now to believe that computing -- our information infrastructure and the applications that make it work -- are absolutely critical to our economic future as well as a huge segment of the economy in their own right. Was Bork saying that approval of the settlement would be to cede this international resource, as well as that part of the economy, to one company, that company being Microsoft?

"Yes. And I'm not sure what this is ultimately going to mean for access to the Internet and sites on the Internet.

Indeed, it is so troubling that other big companies in the information business are at peril, he said.

"Eighth-hand, I was told that Rupert Murdoch was frightened about the control Microsoft might have in getting to various sites, and if Rupert Murdoch is scared, I'm scared."

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