The Big View on Microsoft
U.S. District Judge Thomas Penfield Jackson will begin presiding next week over a trial intended to bring some law and order to the Wild West of cyberspace.
The question before Jackson may seem legalistic: Has Microsoft, as the Justice Department and 20 state attorneys general assert, engaged in a “broad pattern of anti-competitive behavior” since 1991? But Jackson’s eventual answer will help resolve key issues of the Information Age, like whether Microsoft will be allowed to charge a tariff for every financial transaction conducted on the Internet.
The case against Bill Gates’ company began with the Justice Department’s charge last year that the Redmond, Wash., software giant illegally pressured computer companies and Internet providers to use its Internet Explorer browser instead of a rival browser called Netscape Navigator. It has since expanded to include new Justice Department evidence that Microsoft might have exerted more than pressure. For example, according to the Justice Department, a 1991 e-mail message from Microsoft executive David Cole endorses a plan to “put competitors on a treadmill” by using a computer bug that “would surely crash” programs installed on a non-Microsoft operating system.
Understandably, Microsoft is now asking Jackson to limit the trial to the original browser charges, but Jackson should resist. The aim shouldn’t be to gang up on Microsoft but rather to do what all parties in the lawsuit say they want: to focus the trial not on narrow legalisms but on the larger question of how to ensure that competition thrives in cyberspace.
The public interest and Microsoft’s self-interest are not necessarily at odds. After all, if Microsoft loses on any one of the dozen or so charges against it, that could set off a flurry of lawsuits against the company, thereby depressing its stock, which has been a blue-chip bulwark in today’s volatile market.
What’s key is that the trial be open and impartial, which is why the Circuit Court of Appeals should not accede to Microsoft’s request that Gates’ three-day-long deposition, recorded on videotape in August, be kept private.
Since 1913, federal law has mandated that pretrial testimony be “open to the public as freely as are trials in open court.” That law is especially relevant here, for Gates’ testimony provides key evidence of what’s really being assessed by the court: his way of doing business, which, by imbuing Microsoft’s culture, sets the tone for much of the information industry.
The best measure of the trial’s success will be whether it inspires Microsoft to show more respect for customers and competitors than it has in the past. The Justice Department’s most compelling argument is that by eliminating competitors, Microsoft has undermined innovation. For instance, the company’s signature product, Microsoft Word, does not allow users to perform one of the most basic of all word processing tasks: searching a document for more than a single word or phrase at a time. That’s an astonishing omission for a product used by more than 70 million people and one that would have never happened had Microsoft focused less on silencing its competitors and more on listening to its customers.
