The European Court of First Instance must recognize that any delay in sanctions against Microsoft could result in no meaningful sanctions at all. At the same time, Microsoft is entitled to an appeal of the rulings that would fine the company $613 million and require it to offer a stripped-down Windows and open its server protocols.
Its easy for the court to go ahead and take Microsofts money. Redmond will hardly notice, and if Microsoft wins its appeal, the money can always be returned. But opening protocols to competitors and offering a new version of Windows are things that cant be easily rolled back if Microsoft ultimately prevails.
That, of course, presumes than an enlightened Microsoft hasnt figured out that making protocols more widely available is a good idea—even if the EU is pushing for it. As for a version of Windows minus Media Player, I wonder if the EU can force hardware OEMs to actually ship machines with such an OS? Its hard to imagine anyone building a machine with less than the full Windows XP “experience.”
Taken in that light, it almost doesnt matter what the EU does, but Microsofts protests and appeals give prosecutors the false notion that what they are doing actually matters and keeps them tied up for years. What a waste of prosecutorial talent that could actually be doing something important instead of fighting this losing cause.
So, if the penalties were fully implemented today, they wouldnt matter very much. And if sanctions are delayed until the appeal is fully heard and ruled upon, perhaps in 2008, none of this will even be relevant anymore.
Microsoft is going to come out OK almost regardless of what the EU does. Still, using an American standard of justice, not delaying other sanctions would be unfair to Microsoft. But collecting the $613 million fine right away at least gives the EU the appearance of winning, even if Microsoft will never notice the missing cash.
The lesson regulators should draw from the global Microsoft battles is the need to address the companys behavior before it creates problems.
That is much more easily suggested than accomplished, but Microsofts history is full of moments when a legal or regulatory tug in a different direction could have really changed things. Taking on Microsoft after the fact is almost useless.