TCS Daily


Settle Down

By Ryan H. Sager - February 27, 2002 12:00 AM

Next week Microsoft and the Department of Justice will go before a federal judge to try to win final approval of the settlement that was reached last November in the antitrust suit against Microsoft. While the two parties have been able to come to an agreement, the Tunney Act will require U.S. District Judge Colleen Kollar-Kotelly to sign off on the settlement only if she finds that it is consistent with the public interest.

At the hearing, Microsoft's competitors and detractors will argue that the software giant is getting off far too easily. But under a separate provision of the Tunney Act, they have already had the chance to submit written statements during a 60-day public comment period that ended in January, providing a preview of what they will say in court. These comments opposing the settlement rise to Olympian levels of whining - and highlight the reasons that the antitrust suit should never have been brought in the first place.

Since it was a "public" comment period, and since comments were accepted through a publicly posted email address, the DOJ first had to sort through thousands of relatively non-substantive comments - spam, porn, form letters, etc. After that, they had to screen out the screeds and profanities, such as emails reading "Microsoft sucks!" Ultimately, the DOJ chose to release only 47 comments that it considered major, dealing in some detail with specific aspects of the settlement.

Aside from the level of legalese, however, it could be difficult to tell the negative comments submitted by, say, Sun Microsystems, from the 'Microsoft sucks' crowd.

Ralph Nader and Ralph Nader-mouthpiece James Love threw their two cents into the fountain, laying into the settlement as unduly soft on evil, bullying Microsoft. The Naderites think that the five-to-seven year term of government monitoring is too brief, apparently believing that 15 years of government harassment (including litigation that goes back to 1994) are too few for any corporation.

They also offer this gem of an idea: Microsoft should be subject to fines from the government, and those fines should be put into a trust fund that would finance the development of free software - sort of a "make the Taliban eat pork" solution.

Companies that have to work with Microsoft, but want more favorable terms, of course made their feelings known as well during the comment period. Palm, for instance, pleaded that Microsoft be forced to cough up technical specification to allow all of Palm's devices to be compatible with all of Microsoft's operating systems. RealNetworks begged that its media-playing software not get bumped aside by Microsoft's own alternatives. Both companies also requested ponies.

But if the "Yes, Virginia" Naderites and the others looking for presents under the settlement tree took the bronze and silver, Sun clearly took the gold in 100-meter downhill whine. The company that started it all - boldly urging the Clinton administration to sue the computer company's main competitor while other companies were frittering away their time designing products - Sun went on for 25 pages in its written comments, screaming bloody murder about Microsoft's past sins and dreaming of a world that could have been.

Sun's comments get off to a roaring start by accusing Microsoft of "eliminating the ability of alternative platforms to compete with Windows." Eliminating their ability to compete? Strong stuff. Tell that to Apple's Steve Jobs.

Most of the remainder of Sun's comments wander through the magical world of "but for" - what Sun would have "but for" Microsoft's tyranny. "But for Microsoft's unlawful attack," Sun states, "the installed bases of these alternative platforms [Netscape's Navigator and Sun's Java] would have been very different today."

Later, Sun comes right out and asks for what it wants: "To restore competition in the PC operating system market, an appropriate remedy should attempt to place the market back in the position it would have been 'but for' Microsoft's illegal conduct. In other words, an appropriate remedy would ensure... that alternative platforms achieve the distribution that they would have received 'but for' Microsoft's illegal conduct."

How is the government supposed to give Sun its self-proclaimed piece of the pie? No answer is offered, but Sun makes it explicit that giving PC manufacturers more control over the desktop, as the settlement would, is not enough. "In July 2001, Microsoft announced that PC manufacturers, for the first time, would be free to remove access to Internet Explorer," recounts Sun. "Since that time, not one PC manufacturer has removed the Internet Explorer icon from retail PCs." [Emphasis added.]

Could that be because people like Microsoft's Explorer? Could that be because removing a function from a computer is unlikely to increase its value to anyone? And could that be why Microsoft started adding a free browser in the first place?

Such questions, of course, have little meaning to companies trying to pour antitrust sugar in their competitors' gas tanks. It can be hoped though that the judge will see the importance of such questions, and allow the proposed settlement to bring this long, ugly, petty case to an end.

Ryan H. Sager is a freelance writer based in Washington, D.C.

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