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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
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
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.
"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