[wplug] Op Ed piece on Microsoft

Thu Feb 19 17:23:28 EST 2004

Wanted you to see this oped.

I thought that the group would enjoy this. 

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/With apologies for possible duplication .../

The Washington Times
_*www.washingtontimes.com*_ <http://www.washingtontimes.com>

*_A stitch in crime_* 
<http://www.washingtontimes.com/op-ed/20040218-084308-1780r.htm>
By Kenneth W. Starr
Published February 19, 2004

Microsoft's compliance with court orders and antitrust law is mirroring 
its feckless approach to software security. Time and again, the company 
has flouted the remarkably weak antitrust settlement it reached with the 
Justice Department. Then, only after a Microsoft abuse becomes painfully 
embarrassing, the company seeks to "patch" its problem.

It seemed obvious to industry observers from the very start that the 
much-criticized settlement contained so many loopholes that Microsoft 
could continue to avoid competing in the marketplace on the merits. Even 
the cynics assumed Microsoft would comply with its court-mandated 
obligations, since the settlement conveniently required no significant 
changes in its conduct. But the cynics were too trusting. Ironically, 
Microsoft has managed to commit multiple violations of a very bad deal. 
Call it adding insult to injury.

The Justice Department now acknowledges that a provision requiring 
Microsoft to license certain parts of computer code to rivals is not 
spurring "the emergence in the marketplace of broad competition to the 
Windows Desktop." Judge Colleen Kollar-Kotelly agrees, yet maintains 
that the settlement is otherwise generally working.

The stark reality is that the settlement has been market-tested for two 
years, but the market that Microsoft unlawfully monopolized has not been 
pried open one iota. Microsoft's stranglehold over the market for 
personal computer operating systems, as well as all collateral markets 
from which competition could theoretically emerge, has in fact increased 
since the ink dried on the settlement. Try as one may, it is impossible 
to identify a single competitor who has gained even 1 percent of the 
market share from Microsoft as a result of this decree.

While competition profoundly suffers, there has unfolded a pattern of 
choreographed Microsoft concessions as to collateral issues. The 
stratagem works this way: An anticompetitive practice is detected by the 
Justice Department watchdogs. Microsoft vigorously protests that it has 
done no wrong, then, after much hand-wringing, eventually announces that 
it has seen the error of its ways and modifies the offending practice. 
This M.O. has been abundantly evident in various manifestations. For 
example, Microsoft's Windows XP was configured in a way that whenever a 
user activated the "shop for music online" feature, Microsoft's Internet 
Explorer Web browser was opened -- even if the user had specifically set 
the computer to use another company's browser. After stoutly denying the 
illegality of its stubborn practice of running rough shod over users' 
browser choices, Microsoft finally agreed to untie the link to Internet 
Explorer. But "patching" an egregious violation of basic antitrust law 
hardly calls for a round of applause.

Microsoft today retains its most potent anticompetitive weapon -- 
commingling software with Windows to gain a nearly insurmountable 
competitive advantage -- though that practice has been judicially 
condemned as illegal in the very same case. A decree that doesn't stop a 
monopolist from repeating its illegal conduct manifestly harms 
competition both now and over the long run.
Meanwhile, Microsoft continues to say one thing about competition while 
doing another. In promoting its Net Neutrality principles, Microsoft has 
said that consumers should be free to access all lawful Internet content 
and use the applications and devices of their choice. The company went 
so far as to call for government regulation of new industries because 
they might impinge on consumer choice. Meanwhile, this new-found 
advocate of consumer choice -- the same Microsoft found by eight federal 
judges to have violated these principles -- proceeds undeterred 
altogether by the antitrust laws.

The unanimous D.C. Circuit Court of Appeals got it exactly right in 
2001, when it established the accepted parameters of behavior by a 
monopolist. This time, the court can establish remedy guidelines that 
ensure that consumer choice and competition can become real. Happily, a 
meaningful resolution of this landmark case would usurp calls for direct 
government regulation, which inevitably arise when antitrust enforcement 
fails.

Microsoft would have us believe it is now kinder and gentler. Its 
would-be cuddly corporate personality suggests that its unlawful 
business practices were last decade's concerns. Not true. Patching up a 
few outlandish practices will neither restore competition nor improve 
computer security. And no one should doubt that consumer demand for 
greater security would be answered if competition were to replace a 
monopoly. That's the nature of a competitive marketplace -- enhanced 
consumer choice and genuine consumer welfare. And that is what continues 
to be missing.
What's needed is honest but vigorous enforcement of laws that serve to 
keep markets free and vibrant, and judges bravely willing to stand up 
for the rule of law.

/Kenneth W. Starr is former Solicitor General of the United States and a 
former federal court of appeals judge. He has represented software 
companies that have a direct interest in the Microsoft antitrust case./

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