Court Advisor Has Reservations About Breaking Up Microsoft
The Harvard law professor whose views carry weight with the federal judge hearing the Microsoft antitrust trial said Wednesday that he harbors deep reservations about proposals to break up the software giant.
Lawrence Lessig, who has twice been asked by U.S. District Judge Thomas Penfield Jackson to help with technical and antitrust issues in Microsoft cases, said that if Jackson rules that the company violated antitrust law, imposing restrictions on Microsoft’s business practices should be a sufficient penalty.
“I’m skeptical about breakup,” Lessig said. “It doesn’t seem logical to me, but it does to the government.”
Jackson has not sought Lessig’s help on penalties, but such a request would not be considered until after the judge delivers a final judgment, expected within weeks. Jackson has ruled that Microsoft has monopoly power and has harmed consumers, competitors and innovation in the computer industry.
Lessig said the problem with breaking up the company is “where to draw the lines” in a way that corrects any antitrust problems. He further suggested that any desire to push for a breakup of Microsoft could be coming more from government impatience with the company’s behavior rather than from the belief that breakup would be the best way to fix any damage done to the marketplace.
“Part of the history of this case is the government’s frustration . . . in dealing with this company for many years,” Lessig said. The government attorneys “fear that the defendant won’t properly respond to a particular order. I don’t think that’s necessarily justified. It is just what is worrying them.”
Justice Department officials declined to comment.
The views of Lessig come at a delicate moment in the trial as the government and Microsoft apparently are at a stalemate in out-of-court negotiations before Judge Richard Posner, chief judge of the U.S. 7th Circuit Court of Appeals in Chicago. Lessig, who once was a clerk of Posner’s, remains friends with the appellate judge, but said he has not talked to Posner about the mediation.
Lessig has acknowledged that he has not spent a lot of time studying breakup or other remedies, but said he can’t imagine there isn’t a solution that reins in Microsoft’s business conduct short of breaking up the company in the manner of AT&T; or Standard Oil.
“There are a lot of things that distinguish a telephone company and an oil company from a software company,” Lessig said.
Lessig also said that forcing Microsoft to make public the source code for its Windows operating system probably would not be useful. When Netscape made public its browser code to encourage developers to enhance the Web browser, many found much of it to be unhelpful, he said.
Lessig’s strong opinions were at play Tuesday as Jackson questioned attorneys for both sides on a friend-of-the-court brief the judge asked Lessig to write regarding Microsoft’s decision to put its Internet browser into the Windows operating system.
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