Posted on Fri, Nov. 01, 2002


Microsoft: Freedom to Dominate



(Revised and updated)

Microsoft, serial corporate lawbreaker, is getting away with it.

Competition took a hit on Friday. So did the usefulness of antitrust law.

And so did innovation, which is the worst loss of all.

Judge Colleen Kollar-Kotelly's near-total approval of last year's odious deal between Microsoft and the Justice Department, which all but abandoned a case it had won, rests on a foundation of legal minimalism. Although many antitrust experts disagreed, she said she was constrained by limitations in antitrust law. She skewered the challenge by nine states, in language that bordered on ridicule.

In the end, she largely ratified a sellout that gives Microsoft something close to carte blanche for more misbehavior. If the states challenging the settlement are still unhappy, she suggested, they can just file a new antitrust suit. (They should.)

Some state attorneys general, including California's Bill Lockyer, insisted they'd won important changes. And in a conference call late Friday, they sounded as though they're throwing in the towel on an appeal, though they said that decision has yet to be made.

A partial win? Right. It's as if if one political party captured 95 percent of the seats in Congress and the other party bragged about the few it had won. The states got pounded, and the sound you hear is almost pure spin.

Give Kollar-Kotelly some credit. She plainly worked hard on this case. She laid out her reasoning, however flawed, in great detail. And she made a couple of potentially useful tweaks.

But the result scarcely changed what Microsoft and its Bush administration buddies put in place last fall … a deal that gave an unashamed lawbreaker all the room it needed to stick to tried-and-true anticompetitive tricks.

Gaping loopholes remain unchanged. Probably the most brazen of these is Microsoft's ability to prevent disclosure of key technical information if it determines that disclosures would affect security or copyright protection measures. When you're dealing with a company famous for slippery interpretations of agreements, that kind of wiggle room is unacceptable.

The most bizarre part of the judge's ruling was an oh-so-stern warning to Microsoft that it had better live up to the agreement, or else. They're surely snickering in Redmond over that one. Living up to a deal that requires no serious changes can't be that tough.

Of course, we're talking about Microsoft, a company that considers itself above the law in general. The Justice Department has been getting an earful from companies that say Microsoft is already failing to live up to what it pledged … not that this department is likely to care.

If Friday's decision represents the latest in antitrust law, the consequences are unfortunate for innovation. It means, for all practical purposes, that antitrust law can't have any serious impact in a business that changes rapidly. There's no effective way to deal with lawbreaking by tech-industry predators if you can only look back, not ahead.

The other message, which I hope the judge didn't mean to send, is grim. If you are sufficiently rich, mean and unethical … qualities that fit this monopolist to a tee … you can get away with almost anything, especially when you're in cahoots with a government that shares these attributes.

So it was a bad day for competitive markets. And it's a depressing day for anyone who had the slightest belief that our system doesn't side with the rich and powerful.

Sadly, Microsoft's lawbreaking is part of the corporate culture that rose to such prominence in the 1990s, when the rule of law meant little and the basic standard of behavior went something like this: ""What's acceptable is what you can get away with.''

Microsoft got away with it, but that doesn't make its crimes acceptable.

What can we do about this? Very little in the short term, I fear. Microsoft, which laughably claims it's planning to be a benign or even enlightened dictator, could rule the technology world for years, maybe decades, to come. Since technology will be a piece of everything we touch, get ready to find Microsoft's unclean fingers in every pocket and wallet.

The one chance is for people to realize what's at stake and do something difficult: Make choices that mean less convenience today in order to have liberty tomorrow. Americans are lousy at this, but a lot is now at stake. You may not care. You should.





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