InformationWeek

June 26, 2000

Face The Music, Microsoft

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know well the noir, Marathon Man-fueled feeling of victimized, violated helplessness Bob Evans evoked in his June 13 editorial lamenting the decision in the Microsoft case. It's precisely the feeling I got while reading the piece.

For all of his invocations of the evil "Joel [Klein]" and his resentment of his head being crammed against his wishes with thoughts about "what's good for [him]," one fact is consistently overlooked in the piece and the innumerable others of its ilk: Microsoft was found in a court of law to be in violation of antitrust statutes.

Cavil all you will about selective prosecution, outdated laws, lack of understanding of the complexities of the software industry, Janet Reno, the fact that it rains often in Seattle, perceptions that "the judge doesn't like me" (a thought best expressed verbally with grating whininess) � whatever. Cry about it if you wish, but facts are facts. Microsoft fought the expensive fight in a game where the rules are laid out explicitly--and Microsoft, for now anyway, lost.

Is prosecution occasionally selective? Of course it is. Are the antitrust statutes perfectly attuned to current economic reality? Of course not. But does anybody really believe that one half of the Bill-and-Bill golfing twosome so famously photographed would spur the Justice Department to crack down on his highly visible benefactor? And how about the fact that so many states' attorneys general had probes underway before Justice decided to build its antitrust case against Microsoft --and that so many of those states agreed to join Justice in its case?

Smoke was detected, fire was discovered, and the cause of said fire was identified. Case made; case decided.

Microsoft did little to advance its own cause with its conflicting testimony (the browser is an integral part of the operating system, except when we occasionally ship the operating system without the browser for special customers), its tendentious behavior towards and within the court and its seeming inability to comprehend--much less deal with--a "loss."

Plainly, Microsoft is playing the only card it has available to it by pursuing the lengthier of two appeals options, but the mind boggles as to why. Does the Redmond braintrust think it will be able to stall until a "friendlier" set of judges will hear the appeal after a change in administrations? Is there a pipe dream out there that Justice Thomas Penfield Jackson's behavior will be found to have violated all manner of rules? A lingering hope that somehow against all precedent the pertinent antitrust laws will be rewritten and the accommodating rewrite will made retroactive?

No amount of bluster and no set of ads, regardless of how frequently they appear, will change the findings of the court. The kinder, gentler face Microsoft is attempting to paint onto itself can't be achieved through use of mere cosmetics. It would have taken deeds (i.e.: a "deal" with the Justice Department) to avoid the outcome it now faces and that action wasn't taken. Hardball, apparently, was the game Microsoft decided to play. And so it did and so the outcome now stands.

The irony here is that Microsoft, had it shown a shred of subtlety years ago in its dealings with everyone from PC makers to customers to other software developers, wouldn't have had its hegemony compromised. It might have taken marginally longer to achieve and might in some small way have compromised its profitability, but its "my way or the highway" culture and behavior proved its undoing.

Because this case was heard in Washington, D.C. at a time where people (with very good reason) seem eager to ascribe a political motive to deeds and decisions great and small, it might be instructive to recall that the nation's capital has long been populated with smoothies (think Vernon Jordan or, before him, Clark Clifford) who managed to get away with all manner of behavior that at least toed the gray line between black and white. Go along, get along, and be willing (with seeming ecstasy) to take a half step backwards while advancing toward the greater goal.

In retrospect, Microsoft has been using its market position like a blunt instrument in its dealings with all its constituencies, from consumers on up the food chain. And now the wielder of that blunt instrument lies bleeding, the victim not of a mugging as some would have it, but instead of a million paper cuts from documents detailing its own words and deeds.

Lou Bertin is an industry consultant. He can be reached at Lou.Bertin@gte.net


Rusty Weston: Matter Of Fact Rusty explores the facts and figures behind business technology.	Charles Pelton: Eye On IT Charles explores IT management issues and strategies that business and technology managers face.	Jason Levitt: Internet Zone Jason focuses on the strange, egregious, and the standard technologies of the intranet/Internet.	Stuart Johnston: Redmond Watch As our eyes and ears in Redmond, Stuart gives his perspective on the latest events at Microsoft.