SAN MATEO (04/24/2000) - "Your honor, we find the defendants incredibly guilty!"
-- Jury foreman, about Zero Mostel and Gene Wilder, in Mel Brooks' film The ProducersCan you imagine if Lance Ito had been the judge? By the time this column appears, the verdict itself (for the Microsoft Corp. trial, of course ... have there been any others?) will be old news. The obligatory snap judgments will all have been printed, so you've read that (a) Judge Thomas Penfield Jackson was right and should throw the book at Microsoft; (b) he may have been right in theory but technology has passed the whole issue by, so the penalty should be light; (c) the whole trial should never have taken place because antitrust laws are bad for bidness.
The fact is, in the eyes of the law, Microsoft did harm and is guilty. The task now is finding a suitable punishment. What strikes me about this subject is the dreary sameness of the proposed solutions. Every one of them involves either breaking up the company, expropriating its intellectual property (read "Windows"), and/or supervising the company closely while telling it to stop being so naughty.
Sadly, not one of these punishments withstands the most basic of ethical tests:
The punishment should fit the crime. The worst is breaking up the company, because in the wacky world of Wall Street, a broken-up Microsoft would probably exceed a unified Microsoft in total market capitalization.
The goal of issuing a punishment is not to enrich the guilty.
Here's one punishment that does not enrich the guilty and does fit Microsoft's crime of abusing its Windows monopoly by bundling and dumping other nonmonopoly products with it. What would be a suitable punishment? Prevent dumping, require the bundling of competing products, and break the monopoly.
Resolving the bundling and dumping issue is easy: If Microsoft bundles a product, it must also bundle the three leading competitors and only give away a product after at least one rival company has done so.
Breaking up the monopoly is a more interesting challenge. Here's one way:
Require that Microsoft do what it should do -- both publish and respect the OS interface.
In other words, put the Windows API in the public domain -- not Windows itself, just its API. The court would enjoin Microsoft from hiding APIs or changing specifications once published.
This would create near-instant competition of Windows clones. Without any hidden or changing APIs, clone makers would only be limited by their ability to write code that works.
Enforcing this penalty is where the fun would start: The court should establish a bounty, which would be paid by Microsoft to the first person or company uncovering a hidden or changed API. Make it $50 million or so per API, and the average delay between infraction and detection would be measured in minutes.
Here's the best part: Internet Explorer is part of the operating system, so its API, along with the API for the rest of Windows -- all versions -- will now be in the public domain. So will the APIs for any other applications Microsoft declares to be integral to the OS. Wham! Microsoft suddenly has a strong incentive to respect the distinction between OS and application.
That's my solution. Even if you don't like it, at least it's different from the same old stuff.
If, on the other hand, you do like it and are pals with Judge Jackson, feel free to mention it to him. Or mention it to a pal of a pal of his. Six degrees of separation should get it there.
Have a different idea? Send e-mail to email@example.com. Lewis is a Minneapolis-based consultant at Perot Systems Corp.