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IP: Comments on DoJ's Proposed Remedies
From: Dave Farber <farber () cis upenn edu>
Date: Fri, 12 May 2000 19:37:26 -0400

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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 
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

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