Nonetheless, the case continues to inch forward. Last week, the parties were supposed to submit a joint plan to determine exactly how glacial the remaining pace would be in disposing of the District Court’s last remaining task: determining which conduct remedies should be imposed on Microsoft for its lawbreaking ways.
True to form, they were unable to agree. The Department of Justice and the 18 state attorneys general joining it want to go to trial by February and be done sometime in the spring. Microsoft proposed to stretch the case out-perhaps even until 2003-claiming (rather dubiously) that a separate phase of the case should launched to determine whether the government’s punishment would be bad or really bad. In either case, Microsoft made it clear that it believes the proper remedy should be no more than a slap on its monopolistic wrist. But if Microsoft was digging in its heels in the courtroom, it was making nice in the marketplace. Bowing to pressure from critics, the company annonced that it would make its much-criticized authentication service, Passport, work interchangably with competing services like AOL’s Magic Carpet. Only time will tell if this is an insincere feint-like AOL’s oft-repeated and never fulfilled intentions to make its Instant Messenger program interoperable with competitors. But if Microsoft delivers, it’s a big win for consumers, and a concession the firm can point to when critics charge that Gates and Ballmer never give up ground. Less substantively, the company made the symbolic gesture of renaming its upcoming suite of Web Services. Bye-bye “Hailstorm,” hello “.NET My Services.” It is hard to conceive of a less creative moninker, but perhaps blandness was the goal.
Maybe we are supposed to extract a message from these moves: “We may be monopolists, but we still feel your pain.” In other words, instead of hitting opponents with a two by four, Microsoft will simply stick them with thumbtacks. The word inside Redmond is that we may soon see other concessions. Perhaps a retreat on the insistence that Microsoft icons on the Windows XP desktop must be alongside those of competitors. Or a more evenhanded treatment of competiting media players in Win XP. The company’s new operating system has so many features that feed Microsoft’s other various enterprises that there’s plenty of opportunies to untilt the playing field without significantly changing the program.
It would be smart policy for Microsoft to pursue that course, because even as the case continues as contentiously as ever, things are definitely not the same. After Sept. 11, things are not the same anywhere. Though you will not see it in briefings, and no evidence on this will be submitted, an elephant has been introduced into the court case. With the country headed toward a wartime footing, with the economy swirling halfway down the proverbial commode, does the government really have an appetite to stay the course?
Like it or not, Microsoft is one of the most important companies in the nation. Sure, you can argue it from the other side-as those on the antitrust side are already doing-that the nation will be better served by slamming the brakes on all of Microsoft’s monopolistic machinations, so new competitors can emerge. But that’s a long-term strategy that won’t do much to help the economy now. On the other hand, if the anti-trust hardliners-notably those hawkish state AGs-get what they want, Windows XP may have to return to the shop for a complete overhaul. This risks creating, at least in the short run, more confusion in an economy that needs every bit of productivity it can muster.
In theory, none of this is supposed to matter in a court case. But government is less likely to vigorously pursue a case against the will of the people (not to mention the will of an administration desperate to prop up a flagging economy). Public acceptance has always been an implicit part of the government’s case; David Boies and his crew knew that it was important to knock Bill Gates off his pedestal as America’s boy-genius hero. We hear that settlement talks are finally resuming, and I suspect that the elephant will be in attendance. No one may acknowledge the mammoth, but if we see a relatively quick resolution, we may have it to thank or blame. (For the record, I’m certainly not advocating that Microsoft should be let off the hook-just noting that circumstances have strengthened its position.)
If Microsoft makes more unilateral concessions, it will make a less-than-draconian settlement go down easier. (And if the company holds out for a hand-slap, however, the government will hang tough. The Softies have to take some whacks.) And maybe one sunny day a few years hence, if we’re lucky and once again issues like icon placement on virtual desktops become compelling to us, the government can decide whether Microsoft has evolved into-as Steve Ballmer vows-a “good citizen.” If not, the Feds and the States can return to the court room. When the elephant is gone.
