Microsoft: Freedom
to Dominate
Posted by Dan Gillmor
(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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