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