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November 5, 1999

j.ello | by the byte

     It's hard to believe the DOJ vs. Microsoft case is finally coming to a close.  Windows98 was still in beta testing when the trial started.  The finding of fact is not the judge's ruling (although in this case it may as well be), it is merely observations that the judge believes to be true.  The real decision and subsequent punishment will be handed down shortly, but it is clear that the judge believes that Microsoft is a monopoly and has used its monopoly power to the detriment of the consumer. 
     I have read the findings, and it has become obvious to me that while the judge is trying to apply his extensive knowledge of business law and practice to the situation, his limited technical competence and poor comprehension of the high tech business world must be a factor in his renderings.  I do not find that anything that Microsoft has done has limited my right to choose what I want to use and what I don't want to use.  I don't find that Microsoft's tactics are any different from AOL's... the only difference being that AOL does its dirty dealings as quietly as possible.  I believe that public demand for Microsoft's products is responsible for Microsoft's monopoly, not the other way around.
     For example, the judge believes that Internet Explorer is not an integral part of Windows and should be uninstallable.  I agree to a small extent, I think you should be able to shut off IE's web-exploring functions, but I think the judge is missing the point that all software can be made multi-functional.  The interface for web browsing used by Internet Explorer is the same interface used in order to browse the hard drive contents... a feature that shouldn't be uninstallable.  It's Microsoft's right to use the same program for both, just like Netscape can browse the web, create web pages and read mail.  StarOffice replaces the Windows interface completely, yet it is part of an office application, and it can't be uninstalled... you want StarOffice, you get the interface.   What does it matter if Microsoft's disk interface also has the ability to browse the web?  It's not the first time that software has acquired multi-role interface, and it certainly won't be the last.  The ability to do web browsing is a feature like any other, a "web browser" need not be a separate program, and there is no reason why an OS should not be web-enabled.
     In computer manufacturing, Intel has had a virtual monopoly for many years because every time a competitor emerges, Intel fabricates and patents a new standard computing architecture... even when one is not needed, purely to squash the competition.  This monopoly inhibits consumer choice, and has allowed Intel to produce and market chips at a slower rate, so that they can suck every dime out of the consumer.  Now that AMD is a threat again, have you noticed how quickly Intel has been producing faster chips and coming up with new proprietary interfaces designed, not to be better, but to eliminate competition?  Why is that not illegal?  
     The judge sites restrictive licensing agreements as a detriment to consumer choice.  When entering into a licensing agreement with manufacturers, Microsoft has required installations of Windows to come "sans-Netscape", etc.  Now, keep in mind that manufactures have absolutely no obligation to enter a licensing agreement with Microsoft.  The can buy Windows on the shelf like anyone else, install it, install Netscape and anything else they choose and send the machine out the door.  They enter into the agreement with Microsoft because they believe that the agreement will save them money through reduced rates and will benefit their business.  They believe this because their consumers have told them that they want Microsoft products on their machines.  That is a consumer-driven decision if I ever saw one.  Why would manufacturer's enter into the agreement by the thousands if they didn't think it was a benefit to their business?  This form of agreement is no different than an "Education" licensing agreement which is common at university that states the the software in question cannot be used in a business role under any circumstances.  For that, you get an 80% price cut.... but a constrictive agreement.  There is nothing illegal about it.
     Microsoft's business practices are slick and dirty... but no slicker or dirtier than anyone else's in the technology world.  While Microsoft may push its weight around, I fail to see a detriment to the consumer imposed by Microsoft.  Without some sort of harm to the consumer, there is really no case.  If I didn't know how software was produced and marketed, I can honestly say that I'd have an easy time ruling against Microsoft on all counts.  That's actually the point of my last 3 articles.  When the Law doesn't understand technology, how can we expect good decision based on sound reasoning?  I saw no reasoning in the judge's findings that brought him to the conclusions that he came to, at least not based on historical or current evidence shown throughout the rest of the technology industry.  Conjecture and assumption fills 200 pages of the Findings of Fact, and while I don't sympathize with Microsoft, I find it sad that the judge obviously "doesn't get it".  If the licensing agreements are illegal, it should be noted.  If it's illegal to merge web browsing into an OS, that should be noted.  For 200 pages, there just isn't any "meat".
    Now, don't get me wrong... I WOULD like to see Microsoft get what's coming to them, but I'd prefer to see it through the introduction of a competitor's software and services which are inherently better, than by an abomination of justice. Having the government choose how we receive our software just doesn't strike me as being the best way.  

     -j.ello

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