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FC: Newsday oped: Microsoft-It Ain't Over Until It's Over
From: Declan McCullagh <declan () well com>
Date: Tue, 09 Nov 1999 09:33:37 -0800
I have an oped in today's Newsday, attached below. Newsday includes an editorial on Microsoft today, saying "If antitrust laws are to have real meaning in the information age, they mustn't allow to continue a monopoly that so threatens competition and innovation in a key U.S. industry." -Declan ====== http://www.wired.com/news/politics/0,1283,32387,00.html MS Pals Dis Monopoly Finding by Declan McCullagh 3:00 a.m. 9.Nov.1999 PST Microsoft allies inside the Beltway are reeling from a court's 207-page condemnation of the company's controversial business practices. It's not that US District Court Judge Thomas Penfield Jackson's factual findings were unexpected. Most courtroom observers predicted Jackson would find something to complain about. But the scope of the preliminary ruling -- and the sheer volume of Jackson's anti-Microsoft denunciations -- were shocking, even to nonprofit groups that had been bracing themselves for the worst. [...] ====== http://newsday.infonautics.com/cgi-bin/display.cgi?id=382858343a6129MshakeP1 1000&doc=frdocument.html&url=http%3a%2f%2fsorbet%3a10001%2fservlet%2fcom.inf onautics.panama.content.document_repository.RetrieveDocumentForDisplayServle t%3fpublisherName%3dNewsday%2bInc.%26publicationName%3dNewsday%26providerNam e%3dNewsday%2bInc.%26publishingDocID%3de-14350521999 Microsoft-It Ain't Over Until It's Over BY: By Declan McCullagh. Declan McCullagh is the chief Washington correspondent for Wired News. EDITION: ALL EDITIONS SECTION: Viewpoints DATE: 11-09-1999 Page A39 MICROSOFT FOES toasting the company's thoroughly embarrassing defeat at the hands of a federal court should pause before breaking out the bubbly. Not only is Judge Thomas Penfield Jackon's 207-page decision only a preliminary ruling, but the trial is hardly over. Both sides will be spending the next few months preparing another round of legal briefs, which are due at the end of January. It's pretty clear from Jackson's unrelenting condemnation of Microsoft what he thinks of the company and chairman Bill Gates. But he won't reach that final verdict until next spring at the earliest, and appeals will take years. If there's no settlement and the case heads for the Supreme Court, the odds are good that the justices will be eager to hear the case-and doubly so if the government loses. You can bet on the high court deciding no earlier than June, 2003, whether Microsoft really did violate antitrust laws after all. This means that until then, the high-tech business will be riddled with uncertainty: Should venture capitalists write a check to a company that wants to compete with Microsoft? Will Microsoft be broken up into a ragtag assembly of Baby Bills, or will it eke out a slap on the wrist? Will it be restrained from buying-critics would say gobbling-up new companies in areas it wants to dominate? One hint as to what the answer might be lies in a little-noticed court decision last week. The lawsuit began in November, 1997, when Intergraph Corp, a Huntsville, Ala., maker of graphics workstations, sued Intel Corp. for alleged violations of antitrust law. The suit claims the microprocessor giant wielded its monopoly to pressure Intergraph into settling a patent dispute. "Intel abused its monopoly power by engaging in a series of illegal coercive actions intended to force Intergraph to give Intel access to the patents," Intergraph claimed. The surprise was that the tiny workstation manufacturer won. Its lawyers managed to convince Judge Edwin Nelson of the federal district court in Birmingham, Ala., of Intel malfeasance, and he said in an April, 1998, opinion that the company's technology was, essentially, a public resource. "The court finds that essential to Intergraph's competitive survival is for it to have access to Intel's CPUs, Advance Chips Samples, and advance technical and design assistance and information," Nelson wrote. Intergraph executives couldn't stop grinning. "We believe the court is sending an unmistakably clear and far-reaching message to Intel that there's no place for coercive, monopolistic conduct in the computer industry. These decisions are setting a precedent for the industry," CEO James Meadlock said at the time. Whoops. The celebration turned out to be premature. In a decision that went largely unnoticed last Friday because of the Microsoft announcement, a federal appeals court overturned the low- er court's verdict. It lifted the injunction and said that Intergraph probably wouldn't win its suit in the end. Federal law "does not convert all harsh commercial actions into antitrust violations," the judges ruled. "Unilateral conduct that may adversely affect another's business situation, but is not intended to monopolize that business, does not violate" the law. This time, Intergraph's Meadlock wasn't nearly as brazen. He told The New York Times last week that he hadn't decided yet whether to continue pursuing his rejected antitrust claims when the lawsuit comes to trial next year. Justice Department officials and the state attorneys general who have been skipping around the talk show circuit with giddy smiles on their faces should take note. A first-round victory some four years before the case likely will conclude doesn't mean as much as they've been saying publicly-especially when the appeals courts don't seem to buy the concept of Bill Gates as robber baron. On every important decision so far that Microsoft has appealed, a three-judge panel has reversed Jackson. In June, 1998, the trio unceremoniously overturned Jackson's initial ruling against the company in a related case. "In antitrust law, from which this whole proceeding springs, the courts have recognized the limits of their institutional competence, and have on that ground rejected theories of 'technological tying,'" the court said. In fact, the panel ruled, courts should be "deferential to entrepreneurs' product-design choices." Translation: Predictions of Microsoft's imminent demise could easily turn out to be premature. After all, shares closed yesterday down just 15/8 at 89 15/16. The company's adversaries might want to take a hint from Intergraph vs. Intel and postpone celebrations. ILLUSTRATION/PHOTO: Photo - Declan McCullagh KEYWORDS: OPINION -------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology To subscribe: send a message to majordomo () vorlon mit edu with this text: subscribe politech More information is at http://www.well.com/~declan/politech/ --------------------------------------------------------------------------
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- FC: Newsday oped: Microsoft-It Ain't Over Until It's Over Declan McCullagh (Nov 09)