IP: Dan Gilmor on Microsoft

[David Farber <dave () farber net>]

Holdout states last hope to help ease Microsoft's grip on U.S. consumers
BY DAN GILLMOR
Mercury News
So it's down to a few states that have enough money to fight and refuse to 
be bullied. They are American consumers' last hope for an outcome that 
doesn't leave Microsoft on a clear path toward controlling the choke points 
of tomorrow's commerce and communications.
No one should be surprised that half of the state attorneys general have 
given up. A few undoubtedly believe the Justice Department's sellout 
achieved something. Others were just along for the ride and are feeling 
Microsoft's -- and the federal government's -- enormous lobbying pressure. 
Watch the campaign contributions flow to see what may have happened with at 
least some of the politicians who were handling this lawsuit.
If U.S. District Judge Colleen Kollar-Kotelly, who's now hearing the case, 
has any courage, the Tunney Act hearing should be extremely revealing. 
There are so many questions raised by the malodorous deal cut by the 
Justice Department that it's hard to know where to begin.
The best place to start is with the bizarre settlement itself. The document 
reads as though it had been written by Microsoft lawyers. Every time you 
read an item that suggests actual restraint on Microsoft's behavior, you 
find weasel language elsewhere that undermines the supposed concession. 
This thing isn't just full of loopholes. It's meaningless.
For instance:
Why did the lawbreaker get to keep the loot it made from violating the law? 
Do we give bank robbers the same courtesy?
Why does this settlement implicitly give Microsoft the right to withhold 
information about its programming interfaces to open-source and free 
software writers?
Microsoft, in its sole authority, gets to decide what goes into Windows. 
Since that eviscerates every other provision in the agreement, why bother 
with this charade at all?
It would also be useful to put some key people under oath, to answer 
questions about the politics of this case. For instance:
Why did none of the non-political professional staff members who worked on 
this case support the settlement? Have they been ordered to keep their 
mouths shut? If so, why?
What was the substance of the summer conversation between Vice President 
Dick Cheney and Microsoft Chief Executive Steve Ballmer?
Attorney General John Ashcroft's deputy chief of staff -- a Microsoft 
shareholder and former official of the Republican Party, which got massive 
Microsoft campaign ``contributions'' -- reportedly told Microsoft opponents 
to back off even after he'd supposedly recused himself from the case. He's 
denied the report, but let him do so under penalty of perjury. (Oh, wait, 
who'd prosecute? This Justice Department?)
There's another angle that the media, in particular, need to examine as 
quickly as possible. Is it possible that Microsoft and the government have 
made some secret arrangements that will be couched under ``anti-terrorism'' 
rhetoric when or if they emerge into the public light? The government's new 
surveillance powers would be far easier to carry out if Microsoft became a 
government ally in this area.
Have there been such side deals? I hope not. I would prefer to think that 
Microsoft was rewarded by an administration that opposes antitrust 
enforcement on ideological grounds, as this one surely does.
California deserves special credit for its stance. Bill Lockyer, the state 
attorney general, has emerged as the most important public official in 
America when it comes to holding back the Microsoft tide.
This means that Microsoft, with its bottomless pockets and utter 
ruthlessness, now loathes him more than any other public official. Contact 
Lockyer's office at (916) 322-3360 and express your support. He needs to 
hear from people who understand what's at stake.


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