Dan Gillmor doesn’t have an e-mail address listed on his site or I’d e-mail him, but I think he and others who are trying to put an anti-MS spin on the Appeals Court ruling just don’t get it.
The court’s treatment of “tying” Internet Explorer to the operating system is surprising, too, in that it doesn’t absolve Microsoft. Instead, the court returned this piece of the case — a crucial one — to the trial court for further consideration.
So the breakup is out. But remedies for anti-competitive behavior are not. And the all-important findings that Microsoft has and abused its monopoly remain intact.
What Microsoft has won is time. It can continue its brutal practices for a while longer, building into Windows and Internet Explorer and Office any and all technologies that will further solidify the monopoly. It can extend its reach into new markets, using its $30 billion in cash (which grows by a billion dollars a month. The company surely figures that it’ll be entirely above the law by the time the law catches up.
Sure, and pigs might fly. First, the Appeals Court outright reversed the finding of fact that Microsoft had attempted to monopolize the browser market. Then it remanded back to a new judge the issue of whether or not integrating IE into the OS was legal or not.
But how is the DOJ going to prove that integration of IE into the Windows OS is violates the antitrust law when the appeals court has already ruled that the reasons outlined by Judge Jackson for concluding so don’t meet an acceptable standard of proof? Is the DOJ just going to pull additional evidence out of its hat? I doubt it. Furthermore, with Jackson off the case and being cited for his improper ex parte communications, a new judge is probably going to give Microsoft a lot more leeway to present their case than Jackson did in his court.
As for the remedies, they’re headed toward Microsoft but what are the odds this case will ever go before another judge? Very, very low. With the Appeals Court making a breakup impossible, Microsoft now has the leverage it needs to reach an advantageous settlement. This is a prospect the Justice Department is going to be very amenable to since it seems clear that John Ashcroft and the rest of the Bush administration don’t want this case.
This whole thing will almost conclude with a slap-on-the-wrist-fine and some meaningless agreement in which Microsoft promises not to enter into exclusionary deals with ISPs and to stop threatening competitors like Intel who want to enter into deals with Microsoft’s competitors.
Meanwhile, the legal coast is essentially as clear as it is ever going to be for Microsoft’s .Net plans for world domination.