After four years of litigation, culminating this spring in nine weeks of testimony from economists, computer scientists, antitrust experts, Microsoft Corp. rivals and Bill Gates himself, it is now up to Judge Colleen Kollar-Kotelly to decide what should be done to remedy the Redmond, Wash., software makers anti-competitive behavior.
The Washington District Court judge has before her two proposals. One was crafted by Microsoft and agreed to by the Department of Justice in November and is opposed by nine states and the District of Columbia, which argue that it would allow the software maker to illegally edge out such emerging technologies as handheld computing devices, server operating systems and set-top boxes. The second proposal, drafted by the dissenting states as a tougher alternative, has been panned by Microsoft, which claims the expanded punishment would force it to withdraw Windows from the market and irrevocably harm consumers, the “PC ecosystem” and the entire global economy.
Kollar-Kotelly, who has been reticent about the merits of the states remedy proposal, has more options than approving one proposal or the other. She could approve portions of the states proposal and portions of the federal settlement agreement, or she could reject both. Microsoft asked her to reject the states remedy proposal but asked that if she does not dismiss it entirely to at least dismiss the provision for a modular Windows—one that allows Microsoft middleware to be removed from the operating system.
Users and trial observers across the IT industry have formed views on what the judge should do and, unlike the judge, have not been reticent. Some said the government should leave Microsoft alone, letting the marketplace sort out the software business; others said that the pending proposals do not go far enough, that the only way to stop Microsoft from illegally edging out competitors is by splitting the company in two—a solution that was ordered by Judge Thomas Penfield Jackson in the liabilities phase of the trial but was later rejected by an appeals court. Many pundits offer suggestions for a middle ground that could leave Microsoft intact but still give rivals greater capacity to compete in the middleware market.
“This case gives a whole new meaning to the [legal semantics] question: [It] depends on what the word IT means,” said Ed Englerth, network administrator at the Hastings Public Library, in Hastings, Mich., taking his cue from the famous legal defense offered by former President Bill Clinton. “I feel that the judge should approve the states tougher remedy proposal. Although this action may cause a short-term reshuffling of the computer industry, we need this for a long-term solution. And, who knows, Bill may surprise himself with how innovative Microsoft can be when the pressure is really on.”
“What the nine states are now asking for is the bare minimum to allow some competition to remain in the marketplace,” said Glenn Jacobson, president of Unique Systems Inc., in Holland, Ohio. “I liken the OS to Microsofts own sandbox. We need a completely open sandbox that allows others to play with a known set of rules that do not change if Microsoft starts to lose the game. Computers are too important for mankinds future to allow one company to control them.”
Others, however, said the states proposal should be modified before being accepted.
“The court should preclude Microsoft from integrating into Windows any more functionality that includes a direct user interface or user-accessible programming,” said Paul Dalton, a shareholder in Cowles & Thompson P.C., a law firm in Dallas. “Microsoft should be required to disclose to applications competitors each and every API and known but undocumented calls for Windows no later than awareness of same is acquired by the applications developers at Microsoft.”
Still, a number of users said the courts should leave Microsoft alone.
“The open-source community is gaining ground every day, and big companies like IBM, [Hewlett-Packard Co. and Sun [Microsystems Inc.] are helping the movement along,” said Gary Sanchez, owner of CareerPro of Silicon Valley LLC, in Campbell, Calif. “Im afraid that if we spank Bill too hard, we will just end up dealing with other bullies that gain position without competing for it.”
“While monitoring the DOJ debacle taking place in the courts, Ive noticed that everyone has something to lose,” said Eddie Holman, network administrator at Visteon Corp., in Dearborn, Mich. “Consumers lose because standardization of computer hardware, operating systems and technology is what has made the PC user-friendly. I remember the early 1980s, when every PC manufacturer had its own operating system and applications. It was a mess. The states werent complaining then. There was more trash being sold than there are bureaucrats in Washington.”
Then, there are those who feel Jackson got it right the first time with his directive to break up Microsoft.
“A breakup would have been preferable to Software Design By Consent Decree,” said Scott Gates, programmer/analyst at Our Lady of Bellefonte Hospital, in Ashland, Ky. “If making a stripped version of [Windows] is forced upon them, they can make all the screw-ups they want and blame it on the judge: Thats not a bug! Thats a court-ordered feature! I would like to see the OS company produce a kernel that was written to an agreed standard and then they could add functionality as they desired.”
“The best medicine for Microsoft and the [United States] is to break them up for their own good,” said Mark Wirtz, service representative for PC Power Systems Inc., in Almont, Mich.