It’s about time: a return to anti-trust enforcement

A special report from quotes Assistant Attorney General Christine Varney saying “As antitrust enforcers, we can no longer sit on the sidelines.” It’s about time!

As many of you know, I was a witness in the Microsoft antitrust remedy trial of 2001, and one of the specific abuses to which I testified was my sense that Microsoft threatened Red Hat’s OEM partners, causing Dell to abruptly cancel a major Linux-based initiative only months after it had started.

In that trial, Judge Kollar-Kotelly specifically struck the part of my testimony describing Microsoft’s actions toward Dell as “retaliatory”. Unfortunately the evidence of Comes v. Microsoft had not yet been developed, where it was demonstrated that Microsoft specifically said “we should whack [Dell]” and “we [should] be quite prescriptive in our investments with Dell relative to the competitive threats we see with Linux”. Thus, while the evidence in the courtroom the day I testified may not have fully supported the statements I made, contemporaneous facts developed in others cases showed positively that Microsoft continued to abuse their monopoly power in ways that Microsoft denied that day.

Aside: Judge Thomas Penfield Jackson was removed from the original Microsoft antitrust trial before the case was settled. According to a citation from the Wikipedia article, Judge Jackson’s response to this was that Microsoft’s conduct itself was the cause of any “perceived bias” and that Microsoft executives had “proved, time and time again, to be inaccurate, misleading, evasive, and transparently false. … Microsoft is a company with an institutional disdain for both the truth and for rules of law that lesser entities must respect. It is also a company whose senior management is not averse to offering specious testimony to support spurious defenses to claims of its wrongdoing.” I believe that ten years later, there has been no fundamental change in this sort of behavior, from the time I first encountered it in the DC Circuit Court of Appeals to the abuse of the ISO process during the OOXML fiasco (and the continuing dissembling of the ODF standard and standards committee).

But now there is hope.

The whole point of antitrust law is to ensure that the free market remains open to fair competition. Such competition creates the possibility that some new market participants may displace some large market incumbents, and that is as it should be. The financial pundits now talk about the “lost decade” for stocks, with values trading at roughly the same level as they were ten years ago. But if we consider the fact that Windows XP was released in October 2001, and the fact that Vista blew up on the launchpad and that Windows 7 appears either DOA (best case) or undead on arrival (worst case), then the story of the desktop operating system is also one of a “lost decade”. To my eye this reads as a textbook case of why anti-competitive behavior should be prohibited by law: because the power to maintain incumbency is not, in and of itself, a necessary qualification to maintain incumbency. Only through free and fair competition can the free market properly pick its winners.

If only justice had not been deferred for so long…