IP: Comments on DoJ's Proposed Remedies

[Dave Farber <farber@cis.upenn.edu>]

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>Date: Fri, 12 May 2000 12:02:48 -0600
>To: Dave Farber <farber@cis.upenn.edu>
>From: Brett Glass <brett@lariat.org>
>Subject: For IP: Comments on DoJ's Proposed Remedies
>
>Dave:
>
>Since you've published a few comments regarding the DoJ's proposed 
>remedies, I'd like to add my two cents.
>
>Myself, I was shocked by the DoJ document; I honestly could not believe 
>how absolutely, utterly, totally BONEHEADED the proposed structural 
>remedies were. The DoJ proposes the worst possible non-remedy: splitting 
>Microsoft into two companies into an operating system company and an 
>application company.
>
>The problems that would ensue if the judge were un-savvy enough to impose 
>such a remedy are obvious. Immediately, the difficult (if not 
>unanswerable) question raised in the earlier contempt hearing would come 
>up all over again: "What's part of the operating system?" "What's part of 
>the OS?" This question would be debated in the appeals courts for years -- 
>and those courts are notoriously unwilling to split hairs or second-guess 
>Microsoft on technical issues. In the meantime, Microsoft -- or, rather, 
>BOTH Microsofts -- would have their way with consumers.
>
>The DoJ couldn't possibly choose a weaker structural remedy to pursue. I 
>honestly couldn't have thought of one that would be more likely to allow 
>Microsoft to keep the issue tied up in court until it was moot while 
>continuing its rapacious conduct.
>
>If there is to be a structural component to the remedy, it is essential 
>that there be bright and indisputable lines between the parts which are to 
>be divided. Since Microsoft is expert at blurring lines given the chance, 
>the division should NOT be along any line which Microsoft has attempted to 
>blur in the past.
>
>Any division of the company should also be along lines which will actually 
>spur the two companies to compete and port products to other platforms. 
>Does the DoJ actually believe that a "Baby Bill Applications Company" 
>would make its products available for any new operating system? If so, it 
>is foolish. After all, the employees of an application company would all 
>have stock in the OS company as a result of the breakup; it is hardly 
>realistic to expect that they would opt to diminish the value of that 
>stock by porting their software elsewhere. Also, because the application 
>developers have devoted their entire careers to understanding and working 
>with the Windows platform (with some passing attention to the Mac -- a 
>platform which Microsoft supports only because it has no competition 
>there), it is highly unlikely that a Baby Bill would want to venture into 
>unknown waters by porting elsewhere. Finally, even companies which were 
>not formerly part of Microsoft -- for example, Intuit -- refuse to port 
>their software to new platforms. Given the factors I've mentioned above, 
>how likely is it that a "Baby Bill" would do so? My assertion is that the 
>chances are virtually nil.
>
>In short, the structural portion of the Government's proposed remedy is 
>ill-considered and threatens to snatch defeat from the jaws of victory. 
>And while the behavioral portion has merit, it is an insufficient remedy 
>by itself (witness the ways in which Microsoft worked around the 1995 
>consent decree). The DoJ should therefore go "back to the drawing board" 
>and consider structural remedies which are likely to survive on appeal and 
>might actually do consumers good.
>
>--Brett Glass
>
>"Microsoft is continually protecting its turf, even if that
>turf appears to the rest of us as belonging to a company other
>than Microsoft." -- Mark Stephens, AKA Robert X. Cringely
>