Opinion: Microsoft ruling 'left me queasy'
November 12, 1999
by David Moschella
(IDG) -- Now that Judge Jackson has told us what he thinks about Microsoft, how do you feel? Are you happy that "the truth" has finally been officially recognized, or are you angry that one of the greatest companies in American history is being publicly pummeled and dragged through the mud, apparently because it is simply too successful? More likely, your feelings are, like mine, considerably more mixed.
I'm actually surprised that I feel almost no sense of vindication. After all, since the summer of 1996, I've been regularly writing that, regrettably and unwisely, Microsoft stepped over the line to become a dangerous new predator at large, the insatiable Tyrannosaurus Gates. I must have reiterated at least a dozen times that, because of its long-standing monopoly position, Microsoft's unrestrained use of predatory pricing, exclusionary contracts and discriminatory terms and conditions were clear violations of U.S. antitrust law. Jackson's impressively detailed analysis seemingly proved this once and for all.
Nevertheless, the harshness of the judge's opinion left me with a distinctly queasy feeling, the sort of unease you get when you know that something isn't right. Remarkably, despite Microsoft's many improper acts, I can't help but feel that it has been treated unfairly. For example, Jackson had to work very hard to show that consumers have been harmed by Microsoft's behavior, but he all but ignored Microsoft's many obvious contributions. Similarly, while the judge recounted many of the things that Microsoft has done to harass and harm its competitors, he virtually never mentioned the even greater damage these companies have often inflicted upon themselves.
The result is an unnecessarily unbalanced and overly harsh view that has left Microsoft highly exposed to all sorts of future litigation. We live in a country where even a respected but struggling company like Toshiba can be shaken down for $2 billion because some of its laptops had a theoretically faulty floppy drive that might have corrupted some users' data. Worse still, as the tobacco and gun industries have demonstrated, once the federal government has formally demonized a wealthy company or industry, it's pretty much open season for the lawyers. Microsoft would be wise to settle this case before these findings of fact become entrenched as findings of law.
But don't get me wrong. Both the courts and the Department of Justice have undoubtedly performed a valuable service. Almost regardless of whatever settlement or remedy might eventually emerge, Microsoft has already softened its competitive behavior to the great benefit of competitors such as RealNetworks, Red Hat, Gateway, 3Com and others. More fundamentally, Microsoft really has only itself to blame for not recognizing, despite repeated warnings, that the government was serious in its concerns. With a little bit of wisdom, humility and respect, this horrible situation could easily have been avoided.
From this perspective, Jackson's harshness might prove a blessing if it helps Microsoft to finally understand what so many of us have been saying all along. No one wants to take away Microsoft's right to innovate, and as long as Microsoft makes this the center of its defense, it may as well argue with itself. This case isn't about innovation; it's about behavior. And it happens to be the law of the land that monopolists have to play by different rules than other companies. It's a real shame that it is taking Microsoft so long to accept such an obvious and not particularly threatening reality.
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