Go Soft on Bill

FRAMINGHAM (04/10/2000) - You may think I'm crazy, but Judge Thomas Penfield Jackson should let Microsoft Corp. go scot-free. After all, he acknowledges in his ruling that he knows of no "abstract or metaphysical assumptions" by which to define a product and a market under the control of a monopoly. You must, he wisely counsels, review each situation. In Microsoft's case, Jackson found one.

Yet, by his own logic, the monopoly didn't exist until he defined it.

Microsoft is now betting that other jurists in the appeals process will define it differently. Just as you or I probably do.

In finding Microsoft guilty, Jackson dwells on how ruthless the company was to competitors, especially those that threatened to lure away its revered developers. Microsoft did everything in its considerable means to attract and hold on to those programmers and systems designers.

Only in retrospect, in our new Jackson-defined era, can those activities be seen as illegal. In other words, Microsoft didn't know it was a monopoly until last week's decision. It lacked any comprehension that it acted unlawfully.

What I'm suggesting is a corporate version of the insanity defense. The company wasn't in the same reality as Jackson and the rest of us. So it can't be blamed.

Hence, I strongly suggest that any punishment sought by the prosecution, the 19 states and the 101 lawsuits be set aside. There should be no more talk of breaking up the company or forcing it to conduct business in a particular way.

I suggest a deal wherein Microsoft simply remains Microsoft.

What Gates has to accept is that Windows is a monopoly product in the Intel desktop market. And any future actions the company takes will be seen as those of a monopolist. Gates would be free to run a successful and legal monopoly - a fantastic management challenge. Or he could break Microsoft up as he saw fit, not as the DOJ thought right.

This strikes me as a sane proposal that will save the industry unnecessary turmoil during an endless and uncertain appeals process. Alas, Gates & Co. so far refuse to accept the reality of being a monopoly. Which brings me to a different insanity defense.

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