InformationWeek

March 16, 1999

The Microsoft Case: It's All Over But the Lawyering

By Lou Bertin

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front-page headline on the Washington Post's business section two weeks ago said it all: "Microsoft Lets Dell Delete Browser Icon". That's it. It's over. Surely, the government's case against Microsoft will proceed to conclusion, but the central issue is now moot. Kaput.

By granting Dell dispensation that permits it to ship PCs without the Internet Explorer icon front and (slightly left of) center at startup, Microsoft has--in at least this one case--finally addressed the issue that's at the heart of the government's case. And it did so by bowing to the market's wishes. Both the customer and Explorer-less version of Microsoft Windows are surviving just fine, by all accounts. End of story.

What this case was all about was Microsoft's use of its pre-eminent position in (stranglehold on?) the operating systems market to further its related interests at the expense of competitors. The startup icon issue is the perfect illustration of the case against Microsoft. By writing contracts that required PC makers to ship Windows with their wares, Microsoft was, in essence, telling the marketplace that "We know what's good for you and our browser is it."

By allowing Dell to finally shake loose of that requirement, Microsoft has literally and figuratively capitulated to the one demand that really matters--that of allowing individuals to make an unfettered, uninfluenced choice on non-operating system products.

To be sure, Dell's dispensation is limited and Dell is saying all of the right things. On limitations, Dell CEO Michael Dell acknowledges that the only icon-less PCs it ships are "to corporations" and Mr. Dell took pains to cite his company's "close relationship" with Microsoft. For its part, Microsoft said that the icon-less, Explorer-denuded PCs that Dell is shipping represent a "limited aspect of Dell's business with a select group of corporate customers."

The bottom line, however, is that expecting other PC makers not to clamor for similar dispensations is folly--and to expect that Microsoft will bestow its dispensatory favors on one vendor and not others is loonier still.

Despite Microsoft's dire courtroom warnings to the contrary, it appears that Internet Explorer--both in functional and iconic form--can indeed be removed from startup screens without damaging Windows. An assertion to the contrary, delivered most recently by Microsoft VP Joachim Kempin, was the cornerstone of Microsoft's argument throughout the case. Now, by its own deed, Microsoft has undercut its own defense.

Is it reasonable to expect that Microsoft will roll over? Hardly. The company is likely to argue that the Dell case is a special one and that its waiver represents a sign of being sensitive to customer needs--in this case to those of Dell and its corporate customers.

That argument won't hold water for long, though. Are Dell's corporate customers somehow smarter than the public at large? Maybe, but that doesn't mean that policy should be made (or broken) simply for the technology elite. Do Dell's corporate customers have the leverage to compel the technology gods to allow an Explorer-less version of Windows to perform swimmingly? Not likely.

So, then, if these "special" boxes, configured for "special" customers, work just fine, what's preventing other PC makers from providing similar Explorer-less devices for the rank- and-file among us? Other than Microsoft's "must-carry" provisions in its Windows licensing agreements with PC makers, I'm at a loss as to how to answer that one.

And so, it seems, the case might now begin to inch towards resolution. It's completely reasonable to expect that the settlement dance will begin while the trial is in recess and equally reasonable to expect that U.S. District Judge Thomas Penfield Jackson won't pass up the irresistible opportunity to make his voice heard on one of the critical issues for the 21st-century economy.

But as far as the case itself goes, it's all over but the shouting (or, in this case, lawyering). Windows ships without Explorer and life as we know it does not cease to exist. Imagine that.

Lou Bertin is managing editor of CMP Media's Business Forums Group and an industry consultant. He can be reached at BertinL@aol.com.