Justice Delayed Is Justice Denied

In recent weeks, issues such as Microsoft's anti-competitive behavior have rightly faded to nearly trivial stature.

In recent weeks, issues such as Microsofts anti-competitive behavior have rightly faded to nearly trivial stature. But as our attention gradually returns to everyday concerns, there are recent developments in that case that we find troubling.

The appointment of appeals court Judge Colleen Kollar-Kotelly promised a fresh start to the mired litigation. But soon after her appointment, the Department of Justice announced it will not ask for Microsoft to be broken up. This unilateral concession was not reciprocated in any visible way by Microsoft.

Showing some frustration with a summer of little progress, Kollar-Kotelly recently gave the parties two weeks to reach an agreement or face the appointment of a mediator. There is a very slim chance that by the time you read this, the two sides will have signed a consent decree. Instead, its far more likely that we will face many more months of mediation, which is to say, gridlock and uncertainty.

For years, we have been saying that time is the most critical element in this entire proceeding. Since technology moves quickly, we have argued that justice must be equally swift. Never has the expression "Justice delayed is justice denied" been more fitting.

But while Microsoft has had setbacks on many fronts, including the fundamental question of wrongdoing, the companys strategy of delay has been succeeding brilliantly. Microsoft has always issued statements that it was interested in working with the government to find a solution. In the aftermath of the appeals court ruling in June, Bill Gates appeared to be sincere in wanting to strike a deal. But the companys actions since then have belied those pronouncements.

Microsoft must believe it gains by delay. The longer that things are postponed, the more people tend to forget what the case was all about to begin with. Given the time it has bought, Microsoft can move far into its next-generation strategy behind XP—.Net, Passport and HailStorm—making those technologies fait accompli in advance of any remedy.

However, Microsoft should take care not to assume that what has worked so far will keep on working. The technical forces that established the companys monopoly and the market forces that have helped it maintain and extend that power are both subject to change as the Net becomes more powerful and more pervasive and as the momentum of open standards continues to grow.

At some point, goodwill becomes important, and having friends becomes as important as having raw power. If Microsoft does not accept civilized behavioral remedies soon, it may face far more brutal justice from a marketplace that collectively decides it has had enough.