Petreley's Column: MS can't be trusted to listen

I read Judge Thomas Penfield Jackson's findings of fact in amazement. Not only does this Judge really get it, he knows how to communicate it. Anyone who digests the entire document and still thinks Microsoft has not abused its market power to stifle innovation and harm the consumer has got to be running a few pins short of a Pentium.

One of the basic tenets of the findings of fact is that a natural "applications barrier to entry" exists due to the widespread adoption of Windows. And the barrier is self-perpetuating. As long as Windows is the most popular desktop operating system, there will be a high barrier to entry for applications written to other operating systems. This means there will always be more applications for Windows than for any other operating system. And as long as there are more Windows applications than applications for other operating systems, Windows will remain the most popular desktop operating system.

Where Microsoft went wrong (legally and ethically) is that it exploited this powerful position to stifle competition on Windows and to raise the barrier to entry even higher for any application that presented a threat to its existing desktop monopoly. Java and Netscape Navigator are two examples of such threats because either could turn Windows into a commodity. If Windows became a commodity, one could easily switch it out for some other desktop operating system, thus reducing the barrier to entry.

The question of what to do about this problem remains. Assuming there is no settlement, what's left is the remedy. It's not easy to imagine a remedy that would work. It would be futile to attempt to regulate Microsoft's business behavior, for example. Microsoft has already demonstrated unbridled contempt for any external decree or instruction. For example, Judge Jackson himself watched in disbelief as Microsoft attempted to deliver an unusable version of Windows in supposed compliance with Jackson's request to deliver a version of Windows without Internet Explorer. So it doesn't matter what legal constraints are placed on Microsoft. Microsoft will treat any regulations as if it were a game of "find the loophole" and end up doing exactly what it wants to do -- no more, no less.

It would be just as ineffectual to force Microsoft to turn over the Windows API to an external standards group. Microsoft would stall this process for years, arguing over what constitutes a Windows API (as opposed to an application API or an undocumented feature, to cite two examples). I must admit, however, it might be worthwhile to take this approach just to see Microsoft suddenly flip-flop and claim Internet Explorer is a separate application and doesn't fall within the domain of Windows APIs.

The government could break up Microsoft into at least two separate companies. The logical division would be operating systems and applications. This might work, but it would require a formidable list of backup provisions and years of close monitoring to prevent Microsoft from circumventing the intentions of such a split. Microsoft already pulls the strings of countless hardware and software vendors simply by dangling threats or promises regarding its operating system. Does anyone seriously think the operating system company wouldn't have even more power over its application clone next door? And are we really willing to pay tax dollars to monitor phone calls, e-mails, and whatever else is necessary to prevent this?

The only workable solution I can think of is to take Windows away from Microsoft. In other words, not only relieve Microsoft of its sovereignty over the Windows API, but make it illegal for Microsoft to produce Windows or any reasonable facsimile as a product. All versions of Windows -- including Windows NT, 9x, CE, 2000, and so on -- would go to a nonprofit standards organisation responsible for maintaining and distributing products.

No doubt this seems rather severe. Microsoft invested a lot of time, money, and sweat into Windows. But Microsoft is wielding it like a spoiled child. If a little kid smacks another kid with a toy, you tell him to stop. Microsoft's response has been to throw the toy at the other kid and argue that throwing isn't the same thing as hitting. Well, sometimes you just have to face the fact that the kid won't listen and take away his toy.

Nicholas Petreley is editorial director of LinuxWorld (http://www.linuxworld.com). Reach him at nicholas_petreley@infoworld.com, and visit his forum at www.infoworld.com.

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