[Here's a question: What would have happened if Judge CKK or someone of her stature had been assigned the MS antitrust case way back in 1997, instead of the preternaturally biased Judge TPJ? Certainly we wouldn't have had TPJ's anti-MS bias in his opinions and his doomed breakup order, both of which emboldened the DOJ and the states and made a settlement take years longer. --Declan] --- Subject: CEI's Weekly Commentary: The Microsoft Settlement Date: Sat, 2 Nov 2002 11:47:16 -0500 From: "James V. Delong" <JDeLongat_private> To: "James V. Delong" <JDeLongat_private> CEI C:\SPIN This issue: The Microsoft Trip: Are We There Yet? This week's c:\spin is by James V. DeLong, Senior Fellow, Project on Technology and Innovation, CEI, November 02, 2002. Judge Colleen Kollar-Kotelly is regarded as an intelligent and meticulous legal craftswoman. This reputation is confirmed by her 500 pages of opinions in Microsoft, in which she upheld the settlement between the company and the Department of Justice, and imposed only limited additional restrictions in response to the demands of the non-settling states. Her conclusions were dominated by a focus on the need for a tight connection between any remedies imposed and the narrow scope of Microsoft s offenses, as defined by the D.C. Circuit last year. The monopoly at issue encompasses only operating systems for PCs based on Intel chips, not PCs generally, computers at large, or the world. This monopoly was lawfully attained, and there is no legal basis to break it up. Microsoft s offenses lay in actions designed to maintain this limited monopoly, particularly in its treatment of middleware, software which, by allowing applications to run on more than one OS, would encourage development of alternative OSs. Working within this framework, the judge found that the federal settlement, tailored to force Microsoft to be more accommodating of middleware, easily meets the statutory standard of the public interest. In the next opinion, the dissenting states got a few additions, but she rejected arguments that the narrow liability finding is a general hunting license to compel drastic alterations to Microsoft products [or] . . . to aspects of its business model which do not involve illegal conduct. We at CEI, who think the case was misbegotten and that antitrust enforcement in general has degenerated into a mishmash of abstractions that can be twisted to support any conclusion, remain grumpy. And Microsoft is now subject to a load of regulations, with a potential for future mischief. But this is no criticism of Judge Kollar-Kotelly, who was bound by the prior findings in the case. She got the big picture absolutely right by emphasizing that this is a legal proceeding, not a legislative hearing, a political campaign, or a witchhunt, and that the remedies must be circumscribed by the proven offenses. An expansive view that crafting remedies is an exercise in free-form restructuring would have been a disaster, for Microsoft, the tech sector, and the overall state of antitrust law. There is no guarantee against further appeals, but the opinion is bulletproof. The D.C. Circuit will not overturn it. But the decree must be implemented, and the requirements are complex, which creates a possibility of continuing guerilla war. Aware of this, the judge insisted on retaining authority to act on her own motion to enforce the decree, and she warned all sides that she will use it. For example, she noted that the DOJ/Microsoft settlement adopts a clear and consistent philosophy such that the provisions form a tightly woven fabric. And she had harsh words for all -- for plaintiffs who tried to leverage a narrow liability finding into a rivals wish-list, and for Microsoft s minimalist view of its own illegal conduct. The luck of the lottery of judicial assignments gave us all a winner this time. Now it is up to the plaintiffs to end the uncertainty and let the entire tech sector get on with its business. C:\SPIN is produced by the Competitive Enterprise Institute. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ Recent CNET News.com articles: http://news.search.com/search?q=declan -------------------------------------------------------------------------
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