January/February 2003  Volume 29, Issue 1
January/February 2003
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First Person: Laughing Out Loud
by G. Burgess Allison

Well, I'm glad that Bill Gates finally learned his lesson in that painfully brains-free resolution of the Microsoft antitrust case. Yup. He learned that when you get slapped on the wrist in federal court, you should shed as many crocodile tears as a gullible non-technical business press will accept.

I guess Gates also learned that laughing out loud and openly mocking the penalty-as he did when he was slapped on the wrist back in 1994-is actually a poor strategy for getting the feds off your back. (Doh!)

Okay, it was astonishing to watch a fawning, tough-on-street-crime, easy-on-the-CEOs Justice Department backpedal from its earlier wins in this case. When the DOJ-requested breakup of Microsoft was overturned on appeal, Attorney General John Ashcroft called it "a significant victory" and said he would be looking forward to settlement talks with Microsoft. (So do you think that put a wee little crimp in the DOJ's bargaining position?) Sure enough, the ensuing "settlement" turned out to be an anti-antitrust sweetheart deal, filled with meaningless sanctions and loopholes. (I loved the provision that said only Microsoft and the Justice Department could enforce the agreement. It actually prohibited the court from taking action without Microsoft or DOJ approval!)

Sadly, Judge Jackson-frustrated with Microsoft's apparent penchant for fabrication and disrespect for the federal trial courts-undercut his own rulings in a fit of judicial unrestraint, and the case was remanded to another judge. (What could he have been thinking?)

Unfortunately, Judge Kollar-Kotelly doesn't have first-hand experience with Microsoft's hubris, and displayed a wonderful doe-eyed innocence with respect to life in the technology trenches. In the now-approved settlement, Microsoft agreed to stop destroying companies that have already been destroyed. And no more stifling innovation that's already been stifled. But when the dissenting attorneys general asked the court to constrain Microsoft's future activities, Kollar-Kotelly virtually laughed out loud, calling the request "outlandish." She actually admonished the dissenting states for seeking to curtail illegal behavior in new technology sectors. (What could they have been thinking?) "Outlandish!"

Ashcroft applauded the settlement, saying it will benefit consumers because it encourages companies to develop new software to run on Windows! His Billness called this "tough, but fair." (Apparently with a straight face.)

What Does This Mean to You and Me?
Oh, my goodness-you name it. Microsoft's "innovative" new pricing and license rules are already under way. Expect the gloves to come off in the holy war against Linux and open source. And with the judge's gaze fixed squarely on the past, the join-or-die pogrom of Übersoft competitors who actually do innovate should continue. Of course, don't expect even tiny changes in Virus Central (Outlook and Exchange). Well, maybe a few-as gaping security holes in your µSoft software become hostages in Bill's quest to sell upgrades. Other than that, life is good-I've already gotten my MSN-Borg implant. ("The Bill assimilated me, but all I got was this lousy T-shirt.")

The entertainment value of this case peaked when Judge Kollar-Kotelly warned the Billinator not to try any funny stuff while she's got jurisdiction-oh, no. Quoting Machiavelli (!) to paint a picture of Old-Microsoft duplicity ("A prince never lacks legitimate reasons to break his promise") (and how shortsighted of me not to duly recognize The Bill as royalty), Kollar-Kotelly sternly warned: "This Court will exercise its full panoply of powers to ensure that the letter and spirit of this remedial decree are carried out."

In deference to the court (and having learned his lesson), Prince Gates reportedly refrained from laughing out loud.

But he did squirt milk out his nose.

G. Burgess Allison ( allison@mitre.org) is the Technology Editor of Law Practice Management. He wrote The Lawyer's Guide to the Internet (ABA, 1995) and was the author of LPM's popular Technology Update column for 18 years.

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