DOJ, Judge Over-Ambitious in Bid to Destroy Microsoft

Through the years, pretenders to the software throne have come and gone—companies such as Ashton Tate, Borland, Novell, WordPerfect, Lotus, and, more recently, Netscape and Corel. These companies shared a desire to be number one, to topple Microsoft from its arrogant perch atop the PC industry. But Microsoft's slights against competitors, vaporware announcements, and shady business deals had a profound negative effect on the executives who led the companies. And once those leaders saw the battle in terms of personal revenge or, heaven forbid, some sort of crusade, all was lost. As I've said before, the competitors' mistakes did more to doom them to the sidelines of history than any Microsoft product improvements or research and development.

Let me be plain: I'm not a Microsoft fan—although I advocate using several of the company's products, especially Windows 2000. I think that Microsoft has brazenly broken the law in its bid to maintain and extend its Windows and Office monopolies. The facts are readily available and too obvious, I believe, for anyone to think otherwise. But as Microsoft grew into prominence and maintained its grip on the industry, its erstwhile competitors did everything they could to cripple their chances of effectively battling the software titan. Even in the relatively short history of the PC industry, examples abound. In the past, I've discussed the ways in which Linux is following the same path. For the foreseeable future (admittedly, a short period of time), Linux doesn't pose a threat to Windows—but Microsoft's advantage has almost nothing to do with any improvements to Windows.

The pattern is the same in the legal arena—with the Department of Justice (DOJ) and its antitrust lawsuit against Microsoft. From the government's perspective, the suit has gone amazingly well: Two years after charging the company with anticompetitive practices, a federal judge has handed the DOJ an unbelievably single-sided victory. At every step along the way, Judge Thomas Penfield Jackson has rankled Microsoft. He rolled his eyes during an airing of Bill Gates' taped deposition and humiliated Jim Allchin when an embarrassing video demonstration was shown to be doctored (although the doctoring hadn't been done for insidious reasons). The judge fell asleep several times and shouted down a Microsoft executive who tried to explain his position. When Jackson released his Findings of Fact in November, analysts expressed shock at the singularly damning language used to describe Microsoft. And when mediation failed to reach a settlement, Jackson came down hard on Microsoft, issuing a similarly scathing guilty verdict and a final ruling that basically signed off on the DOJ's proposed remedy.

I think that Microsoft is guilty and that breaking up the company might be necessary, given its inability to grasp that it actually did anything wrong. But Jackson has been so eager to belittle the company and punish Microsoft for its arrogance that he has virtually guaranteed that Microsoft will win on appeal. The US District Court of Appeals was so impatient to hear the case that it actually accepted the case before Microsoft even filed a request. In the legal scrambling, the DOJ seems to have forgotten an important rule: In a case this important, which will set legal precedents and have vast economic ramifications, Microsoft must have every chance to defend itself against government intervention. If the company's guilty, break it up. But Microsoft must first have every legal avenue opened to it. (In this country, murderers and sociopaths seem to get more opportunity to defend themselves.)

Although Microsoft has been found guilty of violating US antitrust laws, the company will walk away from this lawsuit battered and bruised but ultimately as arrogant as ever, simply because its opponents couldn't see through the red haze of hatred. In a high-stakes game such as this legal battle, being governed by anger is a fatal mistake. Of course, should the Microsoft case ultimately be thrown out, the 19 states that allied themselves with the US government have pledged to continue the battle, and those lawsuits could keep the company in court for a decade. But heck, that's just another decade during which Microsoft can continue to stoke its dominance in the industry—because those bringing suits against the company won't be able to use the previous high-profile case to their advantage. Once again, opponents' mistakes will have created an opportunity for Microsoft that the company could never have created for itself.

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