Analysis: DoJ Decision Is Good for Linux

[Warren Togami]

http://linuxtoday.com/news_story.php3?ltsn=2001-09-07-004-20-OP-MS
By Dennis E. Powell dep at drippingwithirony.com


Within minutes of the announcement that the U.S. Department of Justice would
not seek a breakup of Microsoft Corporation or a retrial of Microsoft on the
grounds that it violated the law in bundling its Internet Explorer browser,
news sites and discussion groups were filled with acrimonious talk about how
the government had rolled over for Microsoft.

An examination of the facts in the case, though, paints an entirely
different picture: the DoJ and the 18 states who are also party in the
antitrust action against Microsoft agreed that continuing to retry the parts
of the case overturned by the U.S. Court of Appeals in Washington would do
nothing more than allow Microsoft to continue its illegal behavior for
additional years of litigation.

"And even then, there is no certainty that we would win, or that the
decision would survive an appeal to the Supremes," said an attorney in the
Connecticut attorney general's office a few hours after the announcement.
"It is better to consolidate -- we won the greatest part of the case and are
confident it will withstand appellate scrutiny. There were a number of
lawyers in the case who doubted that Judge [Thomas Penfield] Jackson's
remedy would have solved the problem. Far from capitulating, we're in a
situation that ought to have Microsoft quaking in fear."

In its announcement, the Justice Department said that it was dropping plans
to seek a breakup of Microsoft and a reconsideration of the allegation that
in tying its Internet Explorer the company violated antitrust laws by
illegally maintaining a monopoly. The breakup remedy, and the tying finding,
were both overturned in the Court of Appeals, though the DoJ could have
sought them again. But this would likely have involved many months, even
years, of additional court proceedings, during which Microsoft would be free
to continue behavior that had already been found illegal, which finding had
survived the appellate panel.

"In view of the Court of Appeals' unanimous decision that Microsoft
illegally maintained its monopoly over PC-based operating systems -- the
core allegation in the case -- the Department believes that it has
established a basis for relief that would end Microsoft's unlawful conduct,
prevent its recurrence and open the operating system market to competition,"
the announcement said. "The Department also informed Microsoft that, in
light of the Court of Appeals opinion and the need for prompt, effective and
certain relief, the Department will not seek a break-up of the company into
separate operating systems and applications businesses, as previously had
been ordered by the court. Instead, the Department will seek an order that
is modeled after the interim conduct-related provisions of the Final
Judgment previously ordered in the case."

This means that the department will ask a judge to enjoin Microsoft from
conduct that promotes and extends its monopoly. Some of the interim
provisions under consideration include:

  a.. Requiring Microsoft to make its APIs available to competitors. This
could well include its application file formats.
  b.. Prohibiting Microsoft from employing designs which break non-Microsoft
products.
  c.. Prohibiting Microsoft from entering into exclusive distribution
agreements with third parties, and from taking action against companies that
distribute other vendors' software.
  d.. Allowing computer vendors to decide what will boot, and in what order,
on the machines they sell, and to determine themselves what will appear on
the desktop, including the Windows desktop.
  e.. In addition, the DoJ asked for expedited discovery -- the speedy
revelation of documents and records -- detailing Microsoft's activities in
the months since the verdict was reached against the company. This,
department lawyers say, could result in a request for additional remedies
against Microsoft.
Despite a roundup of uniformly hysterical and uniformly erroneous broadcast
and print reports, the remedies now being sought are potentially far more
restrictive than the ones approved by Judge Jackson at trial and overturned
on appeal.

How might this benefit Linux where a Microsoft breakup would not have?

Opening the APIs and especially the file formats certainly allows
competition in the compatible office suite market, including open source
software. Additionally, it would enjoin Microsoft from unilaterally changing
standards, because the new specifications would need to be made publicly
available at the same time they are given to application developers.
(Enforcement might be tricky, but it would not be possible suspiciously
quickly to come to market with applications based on new specs.) The same
holds true of a ban on software which breaks the applications of other
vendors.

A change in Microsoft's licensing agreements would make it possible for
vendors to ship machines containing both Microsoft and other operating
systems, with the user deciding which one to make the default. And it would
prohibit the company from penalizing vendors for doing so. A Linux
distribution included at little or no extra cost might prove to be an
attractive value add to some computer makers, who are already struggling.

What does Microsoft think of the DoJ's change in direction? There was a
terse, one-line statement issued by the company, to the effect that the
company is committed to resolving all outstanding issues. But earlier it
said that the remedies, when handed down in interim form by Judge Jackson
before his final ruling, would put the company out of business. While that
was probably overstatement for effect, it is clear that the new remedies
would force Microsoft to change the way it does business.

In making the decision it has, the government has decided that justice has
been delayed too long. Whatever the ultimate remedies selected by the court,
they are likely to be put into effect very quickly.