Quicker Fix for Microsoft
Judge Thomas Penfield Jackson deserves praise for his determination, even though his proposed breakup of Microsoft is a clumsy means of remedying the company’s so-evident wrongs. On the other hand, the U.S. district judge’s order provides some immediate practical fixes: a set of rules to govern Microsoft’s behavior until the breakup occurs--or until the order is overturned.
Microsoft Chairman Bill Gates predictably vowed Wednesday to appeal Jackson’s radical “structural remedy,” which creates two companies--one specializing in the Windows operating system and the other in software for applications like word processors and spreadsheets. It could take years to exhaust every appeal.
Gates’ lawyers want their criticisms of Jackson’s ruling reviewed by the U.S. Court of Appeals for the District of Columbia, the same court that ruled in Microsoft’s favor twice in earlier cases. Jackson and the Justice Department want any appeals sped to the Supreme Court, which some legal scholars say is more likely to affirm the legitimacy of a harsh judgment against a company that has so plainly violated federal antitrust laws.
If the Supreme Court agrees to accept an appeal directly from Jackson’s court, it might rightly affirm the legitimacy of the judge’s decision and then mistakenly go on to support his specific outline of how breakup ought to proceed. That outline is based on a Justice Department plan that even some Microsoft rivals say is technically flawed. The Supreme Court could and should request revisions.
If the federal appellate court deals with Microsoft’s petitions, it could reverse Jackson’s ruling or spend years second-guessing it. Even if breakup is approved, Microsoft’s monopoly abuses could well continue. The newly created Windows company would still make the operating system that runs more than 90% of the world’s personal computers and the applications company would still own Microsoft Office, with its similar commanding position in application software.
That’s why the evolving dispute over how to handle Microsoft’s initial appeal should not divert attention from the second part of Jackson’s ruling: interim restrictions that would benefit both consumers and the companies that do business with Microsoft. Among other things, they would make it easier for outsiders to develop software for Windows and would end retaliation against computer makers that didn’t do what Microsoft wanted. The higher courts, no matter how they handle the breakup, should order the rules into effect as scheduled, in 90 days.
These rules only outline the sort of good business behavior Microsoft should have embraced two years ago. If it had, it probably wouldn’t be facing breakup now.
