[MLUG - DISCUSSION] LinuxToday: DoJ Decision Is Good For Linux

["Igor Izyumin Jr." <EMAIL:PROTECTED>]

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Analysis: DoJ Decision Is Good for Linux
Sep 8, 2001, 00 :23 UTC (70 Talkback[s]) (8778 reads)
(Other stories by Dennis E. Powell)

By Dennis E. Powell

Within minutes of the announcement that the U.S. Department of Justice would 
not seek a breakup of Microsoft Corporation or a retrial of Microsoft on the 
grounds that it violated the law in bundling its Internet Explorer browser, 
news sites and discussion groups were filled with acrimonious talk about how 
the government had rolled over for Microsoft.

An examination of the facts in the case, though, paints an entirely different 
picture: the DoJ and the 18 states who are also party in the antitrust action 
against Microsoft agreed that continuing to retry the parts of the case 
overturned by the U.S. Court of Appeals in Washington would do nothing more 
than allow Microsoft to continue its illegal behavior for additional years of 
litigation.

"And even then, there is no certainty that we would win, or that the decision 
would survive an appeal to the Supremes," said an attorney in the Connecticut 
attorney general's office a few hours after the announcement. "It is better 
to consolidate -- we won the greatest part of the case and are confident it 
will withstand appellate scrutiny. There were a number of lawyers in the case 
who doubted that Judge [Thomas Penfield] Jackson's remedy would have solved 
the problem. Far from capitulating, we're in a situation that ought to have 
Microsoft quaking in fear."

In its announcement, the Justice Department said that it was dropping plans 
to seek a breakup of Microsoft and a reconsideration of the allegation that 
in tying its Internet Explorer the company violated antitrust laws by 
illegally maintaining a monopoly. The breakup remedy, and the tying finding, 
were both overturned in the Court of Appeals, though the DoJ could have 
sought them again. But this would likely have involved many months, even 
years, of additional court proceedings, during which Microsoft would be free 
to continue behavior that had already been found illegal, which finding had 
survived the appellate panel.

"In view of the Court of Appeals' unanimous decision that Microsoft illegally 
maintained its monopoly over PC-based operating systems -- the core 
allegation in the case -- the Department believes that it has established a 
basis for relief that would end Microsoft's unlawful conduct, prevent its 
recurrence and open the operating system market to competition," the 
announcement said. "The Department also informed Microsoft that, in light of 
the Court of Appeals opinion and the need for prompt, effective and certain 
relief, the Department will not seek a break-up of the company into separate 
operating systems and applications businesses, as previously had been ordered 
by the court. Instead, the Department will seek an order that is modeled 
after the interim conduct-related provisions of the Final Judgment previously 
ordered in the case."

This means that the department will ask a judge to enjoin Microsoft from 
conduct that promotes and extends its monopoly. Some of the interim 
provisions under consideration include:

    * Requiring Microsoft to make its APIs available to competitors. This 
could well include its application file formats.
    * Prohibiting Microsoft from employing designs which break non-Microsoft 
products.
    * Prohibiting Microsoft from entering into exclusive distribution 
agreements with third parties, and from taking action against companies that 
distribute other vendors' software.
    * Allowing computer vendors to decide what will boot, and in what order, 
on the machines they sell, and to determine themselves what will appear on 
the desktop, including the Windows desktop.
    * In addition, the DoJ asked for expedited discovery -- the speedy 
revelation of documents and records -- detailing Microsoft's activities in 
the months since the verdict was reached against the company. This, 
department lawyers say, could result in a request for additional remedies 
against Microsoft.

Despite a roundup of uniformly hysterical and uniformly erroneous broadcast 
and print reports, the remedies now being sought are potentially far more 
restrictive than the ones approved by Judge Jackson at trial and overturned 
on appeal.

How might this benefit Linux where a Microsoft breakup would not have?

Opening the APIs and especially the file formats certainly allows competition 
in the compatible office suite market, including open source software. 
Additionally, it would enjoin Microsoft from unilaterally changing standards, 
because the new specifications would need to be made publicly available at 
the same time they are given to application developers. (Enforcement might be 
tricky, but it would not be possible suspiciously quickly to come to market 
with applications based on new specs.) The same holds true of a ban on 
software which breaks the applications of other vendors.

A change in Microsoft's licensing agreements would make it possible for 
vendors to ship machines containing both Microsoft and other operating 
systems, with the user deciding which one to make the default. And it would 
prohibit the company from penalizing vendors for doing so. A Linux 
distribution included at little or no extra cost might prove to be an 
attractive value add to some computer makers, who are already struggling.

What does Microsoft think of the DoJ's change in direction? There was a 
terse, one-line statement issued by the company, to the effect that the 
company is committed to resolving all outstanding issues. But earlier it said 
that the remedies, when handed down in interim form by Judge Jackson before 
his final ruling, would put the company out of business. While that was 
probably overstatement for effect, it is clear that the new remedies would 
force Microsoft to change the way it does business.

In making the decision it has, the government has decided that justice has 
been delayed too long. Whatever the ultimate remedies selected by the court, 
they are likely to be put into effect very quickly.
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-- Igor
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