The LangaList
SPECIAL EDITION!

Getting On The Same Page

You've probably heard quick takes and instant analyses of the DOJ findings against Microsoft, and may have seen some of the more thoughtful pieces just starting to emerge. To help you get closer to the sources and so you can make up your own mind about what's going on, I've set up a full-text copy of the Findings of Fact for you  here (see http://www.browsertune.com/dojvms.htm ). I urge you to take a look: Again, this is a case that will have an *enormous* impact on the type, quality, and cost of the software (and hardware!) available to you for years to come.

When the Findings of Fact were released, I was asked to be a commentator on a live, streaming-audio Internet news broadcast of the event. I was one of several panelists who listened to the full findings-of-fact announcement and the full Microsoft response; we then tried to dig out the important nuggets of information for the listeners. Although the live show ran many hours, you can hear a highly-edited, much-shortened (just 18 minute) RealAudio replay (including commentary by myself, Jerry Pournelle, and others) at http://media.cmpnet.com/twtoday/techwebtoday.ram .

More info:

Evidence Is Overwhelming, But Microsoft Fights:
http://www.techweb.com/wire/story/msftdoj/TWB19991105S0023 

Gates Response:
http://www.techweb.com/wire/story/TWB19991105S0022 

Judge: Microsoft Has Monopoly Power:
http://www.techweb.com/wire/story/msftdoj/TWB19991105S0020 

DOJ Celebrates Sweep In Court:
http://www.techweb.com/wire/story/msftdoj/TWB19991105S0026 

Microsoft Rivals Cheer For Judge:
http://www.techweb.com/wire/story/msftdoj/TWB19991105S0025 

Judge Blasts Microsoft On Most Antitrust Charges: http://www.techweb.com/wire/story/msftdoj/TWB19991105S0024 

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Analysis and Opinion:
Microsoft's Loss Is Not Your Gain

Last week, I told you I thought Judge would issue a sweep of findings against Microsoft. (see http://www.langa.com/newsletters/nov-4-99.htm#iweek ). 

That turned out to be true, but the Findings were even harsher than I expected.  For example, the concluding paragraph in the 200+ page document states (in part):

"Through its conduct toward Netscape, IBM, Compaq, Intel, and others, Microsoft has demonstrated that it will use its prodigious market power and immense profits to harm any firm that insists on pursuing initiatives that could intensify competition against one of Microsoft's core products."

The findings were based on several key points, and some of them clearly are true. For example, for antitrust law to apply, there must first be a monopoly. Microsoft does hold a de facto (and now legally defined) monopoly power over desktop operating systems. Note that there's nothing inherently wrong or illegal in holding a monopoly; and with a 90% desktop market share, Microsoft surely qualifies.

Second, for antitrust law to apply, the monopolist must have abused its monopoly position. For example, it's illegal for a company to use a monopoly in one area to leverage itself into dominance in another, and the Court says that's what Microsoft did with its browser.

But that's where I begin to have trouble with the Court's findings. Most objective analyses show that Microsoft's IE is a much better and more standards-compliant browser than is Netscape Navigator (or Communicator). Claiming that Netscape's demise was due simply to Microsoft's unfair competition ignores Netscape's once supreme market arrogance and its demonstrably inferior "spaghetti code" product design. (If you think I'm exaggerating ask yourself this: Why, although AOL owns Netscape outright, does AOL continue to use Microsoft IE as its default browser? I believe the simple answer is that the current Netscape browser isn't up to par.)

Likewise, the Court makes no allowances for the missteps of other Microsoft competitors: For example, IBM couldn't package or market OS/2 to save its life: It shipped the OS with a butt-ugly UI, and  hobbled it with high prices and extremely poor---almost hostile---developer support practices. And yet the Court cites the demise of OS/2 as an example of Microsoft's power. In fact, I believe it was due mostly to IBM's bumbling.

To me, it seems that the Court has ignored numerous instances where Microsoft competitors have shot off their own toes. Microsoft may have taken advantage of their failures, but Microsoft isn't responsible for (say) the IBM marketing choices for OS/2, or Netscape's architectural decisions for its browser.

This just scratches the surface of the problems I found in the Court's reasoning. Perhaps most disturbing (to me) was what I found---or, rather, failed to find---when I went looking for evidence of what the prosecutors stressed in their press conference and in their conclusion: That consumers were harmed. 

There are amazingly few concrete instances of consumer harm cited in the long document. The Court seems to focus on the unprovable assertion that we all would have been showered with wondrous new technologies, had Microsoft's grip been looser. But the Court cites no examples--- these high tech marvels remain unnamed, unknown, and unidentified. To me, that makes for an empty and emotional argument: You can't prove what isn't there or what might have happened.

I spent most of Sunday wading through the document. There are several cases cited where Microsoft can be shown to have harmed consumers, but many others where I think the Court missed, or misconstrued, the facts. I'll show you what I found---pro and con---in this week's column on WinMag.com. (It's way too much to squeeze into an email.)

Has Microsoft behaved badly? Yes; surely. But it seems to me that the main targets of Microsoft's bad practices were its competitors, not consumers. (Check out the quote, above!) While Microsoft may well have gone too far in some areas, I believe a balanced view---a view I naively thought the Courts were supposed to provide--- would weigh the excesses against the benefits, and arrive at a just perspective that seeks to remedy the bad practices while preserving the good.

Instead, this Court seems to have focused almost entirely on the negatives and ignored the positives. To me, it looks as if the Court is moving toward a harsh and punitive judgment---such as breaking up Microsoft---that I believe will do far more harm to consumers than good.

Why do I feel that way? Because, on balance, consumers have benefited far more than that have been harmed by Microsoft---and I believe I can prove this in my WinMag column this week.

While that does not excuse Microsoft's excesses, in my mind it surely does mitigate them. In overreacting to Microsoft's excesses, I fear the Court just may toss out the baby with the bathwater.

But what's your take? Is Microsoft as totally evil as the Court contends? Do you feel Microsoft has harmed you, as a consumer? Should Microsoft be broken up? Will Microsoft be able to avert a harsh judgment through a negotiated settlement?

Please read the full column and then join in the discussion via the link on the home page at http://content.techweb.com/winmag/ ; the column and discussion should be live by midafternoon today (Nov 8, EST; GMT-5). Please join in!

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And For The "Enterprise" View...

The Findings of Fact supposedly focus on consumerism, but clearly, there are huge implications for businesses that use Microsoft products.

InformationWeek has a venue to discuss that: it's the BBS area attached to my column at http://www.informationweek.com/langaletter. There, you can cast your vote to agree or disagree with the judge, and then join a discussion on the business implications of the court findings. 

Join in!

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See you in the regular issue, tomorrow!

Best,

Fred

(fred@langa.com)

(Please recommend the LangaList to a friend! (And maybe win a Palm III)

An easier-to read formatted HTML version is available in the "what's new" section of http://www.langa.com.  (The HTML version of each issue normally is available by 9AM EST [GMT-5] of the issue date.) All past LangaList issues are also available via the same link.

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