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Charles James should hang his head in shame.
The assistant attorney general of the Department of Justices Antitrust Division has thrown over what was still a strong government case against Microsoft for political and economic expediency.
The 21-page proposed settlement would give Microsoft numerous opportunities to duck, weave and confound the intent of the agreement just as it has with previous consent decrees.
Most troubling is that the government has officially bought Microsofts deeply lame contention that its applications are “commingled” with its operating system. That was a ruse specifically designed for court, and it didnt even hold up there. U.S. District Court Judge Thomas Penfield Jackson saw through it, but the DOJ has chosen not to – and in so doing could guarantee Microsofts market dominance for another 100 years.
If only Standard Oil had gotten it so good. Here are just a few of the real devils in the proposed agreement that give Microsoft every opportunity to sabotage it:
- Microsoft cant restrict original equipment manufacturer licensees from launching non-Microsoft applications after the boot sequence “provided that any such non-Microsoftware displays on the desktop no user interface or a user interface of similar size and shape to the [one] displayed by the corresponding Microsoft middleware.”
What does this mean? Will competing software providers have to use teeny icons? Huge icons? Is a circle kind of like an oval? Is that square icon a rectangle?
- Microsoft cant threaten to keep a software vendor from developing products for Windows based on its use of other technologies, “except that Microsoft may enter into agreements that place limitations on a [software vendors] development, use, distribution or promotion of any such software if those limitations are reasonably necessary to and of reasonable scope and duration in relation to bona fide contractual obligation of the [vendor] to use, distribute or promote any Microsoft software or to develop software for, or in conjunction with, Microsoft.”
This convoluted passage appears to give Microsoft the very power to pull the plug on vendors it feels arent acting in its best interest.
And heres another good one:
- No provision in the final settlement shall require Microsoft to give up its Application Programming Interfaces (APIs) in a situation that might “compromise the security of antipiracy, antivirus, software licensing, digital rights management, encryption or authentication systems, including, without limitation, keys, authorization tokens or enforcement criteria.”
Wow. That gives Microsoft five broad areas of opportunity to deny a third-party access to its APIs. You bet theyll use them.
None of this language is an accident. Such convoluted verbiage makes this agreement almost totally unenforceable. You might as well give Microsoft the keys to the kingdom.
And heres one last little nugget to take note of:
- The agreement requires the establishment of a three-member “technical committee to oversee compliance. But “no work product, findings or recommendations by the technical committee may be admitted in any enforcement proceeding before the Court for any purpose, and no member of the technical committee shall testify by deposition in court or before any other tribunal regarding any matter related to this Final Judgement.”
In other words, if the compliance team were police, they would be unable to file an arrest report or go to court to testify against a bank robber. With a powerless oversight committee, Microsoft has guaranteed itself the maximum flexibility to flout the decree. I can only assume the DOJ would have to step in and enforce wrongdoing, but without any testimony or paperwork to back it up, whats the likelihood of real infractions being punished?
None. And thats the point.
I can only hope the 18 state attorneys general see this abominable agreement for what it is and push ahead on their own.