The Microsoft antitrust trial, probably the most important technology-related legal case of our time, appears to be limping at last toward a conclusion.
Unfortunately, there is an excellent chance that the software colossus will win despite losing, without much to restrain it from going back to the heavy-handed, anticompetitive tactics that prompted the antitrust action in the first place.
Not just the competitors and would-be competitors of Microsoft Corp. will lose: you and I will, too. We will continue being denied innovations that only real and rigorous competition can bring. In many cases we won't know what we're missing, because one sorry effect of monopolistic domination is that many innovations do not even get the chance to be tested in the market.
Those of you who have lost track of the trial proceedings can be forgiven. The trial began five years ago as an action filed by the U.S. Department of Justice and 18 states and the District of Columbia. The suit's milestones include the April 2000 decision of U.S. District Court Judge Thomas Penfield Jackson, who found Microsoft had violated U.S. antitrust laws. Two months later, he ordered the company broken into two separate entities.
In June 2001, the U.S. Court of Appeals upheld Jackson's finding of violations. But it overturned Jackson's order, removed him from the case, and turned the proceedings over to Judge Colleen Kollar-Kotelly, of the U.S. District Court for the District of Columbia.
Last October, Judge Kollar-Kotelly ordered the Justice Department, Microsoft, and the states to negotiate a settlement. In November, Microsoft, Justice, and nine of the states agreed on terms to settle the case (the others are continuing the suit on their own). Under the settlement, Microsoft would not be split apart. Moreover, the restrictions that would be placed on the company are so riddled with loopholes that it is difficult to see how they could possibly rein in the company's entrenched anticompetitive behavior. At press time, observers were eagerly awaiting an announcement from Judge Kollar-Kotelly about whether she would accept the proposed settlement or would insist on more rigorous measures against the software giant.
As it stands, the proposed agreement offers plenty of opportunity for Microsoft to go on as it has. For example, one provision would permit users to choose non-Microsoft software as the default on their computers. Microsoft, however, can dictate that the software use Microsoft technologies. That caveat is just one of many in the settlement that would continue to block competitively innovative software.
Anyone who has followed Microsoft's history will have little doubt about whether the company will exploit these loopholes to continue bullying those who want to use or distribute its competitors' products. Microsoft's success in recent years has come from blocking users and developers from innovations by other companies that could threaten Microsoft's dominance. That is the essence of the company's violation of the antitrust laws, and its bad effects continue to the present day.
Web-browsing technologies are just one example. Countless memos show that in the 1990s Microsoft's senior executives saw Internet innovation, especially so-called middleware technologies that link the PC to the Web, as a threat to their monopoly position in Windows. From 1995 until the end of the browser war, they were particularly worried about losing user and developer attention to Netscape Communications' Navigator browser, to Sun Microsystems' Java architecture, and to other new Internet-related technologies.