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Tech Update
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David Berlind's Reality Check
Analysis: Rating the remedies
The U.S. District Court found that Microsoft violated Sections 1 and 2 of the Sherman Antitrust Act. In its ruling, the Court said Microsoft violated Section 1 by tying Windows and Internet Explorer and thus restrained trade; Section 2, which prohibits monopolizing trade, was violated twice according to the Court, because Microsoft maintained a monopoly and attempted to gain a monopoly of the Internet browser market.
But only the monopoly maintenance violation was, in part, upheld b  |
y the U.S. Court of the Appeals. The Appellate Court overturned the ruling regarding Microsoft's attempt to gain a monopoly, and sent the Section 1 violation back to the District Court for completion of the due process that Microsoft was wrongly denied by Justice Thomas Penfield Jackson.
Ultimately, Jackson was disqualified and his remedy was put aside. The DOJ then decided not to pursue the issues that had been sent back to the District Court and moved directly to finding a remedy. The new judge--Justice Colleen Kollar-Kotelly--set a deadline for the Attorney General and Microsoft to come up with a remedy. The result is a remedy proposal that the Attorney General, Microsoft, and nine states think makes sense. But eight other states and the District of Columbia disagree, and have come up with a proposal of their own.
Where will this end? Perhaps the answer lies within each of the remedies. To determine if that might be the case, ZDNet has identified a list of criteria that endeavors to test the effectiveness of the proposals based on antitrust remedy provisions. The idea is to find provisions from each proposal that address the same problem (such as exclusive dealing) and then to apply the test criteria to see which provision comes closest to accomplishing the objectives of an antitrust remedy. The ten c riteria are based on the three official legal objectives of an effective antitrust remedy and seven additional tests identified with the help of our legal expert, Linda Eads, and a review of the Appellate Court's opinion.
- Will the provision put an end to the unlawful conduct?
According to Supreme Court precedent, one of the three objectives of an antitrust remedy is to put an end to the unlawful conduct.
- Will the provision undo the anticompetitive consequences?
The second of objective an antitrust remedy is to restore competition to the market. The market in this case involves the Intel PC operating system; many feel a remedy can do little to restore this market. By the time anticompetitive consequences are undone, the market may have changed so dramatically that desktop operating systems will no longer be relevant.
- Will the provision avoid recurrence of the violation and others like it?
Precedent requires that all antitrust remedies be forward-looking. In a previous antitrust case, the Supreme Court said that the remedy must "ensure that there remain no practices likely to result in monopolization in the future."
- Is the provision in the spirit of the June 2001 United States Court of Appeals opinion?
Even though the original remedy was vacated, the Appellate Court still upheld many of the Districts Court's findings regarding the illegality of Microsoft's actions.
- Will the provisions be easy to manage by a third-party oversight body?
Both remedies identify a third party that is charged with remedy compliance oversight. Does the provision clearly set forth the terms so that the third party's task is manageable?
- Are the terms set forth in such a way that the litigants won't end up back in court?
The DOJ, the states, the courts, and Microsoft want resolution, but if settlement terms leave too much room for interpretation any or all could end up back in court.
- What is customarily done?
This test has limited applicability, but with certain provisions, such as third-party oversight, the court has a track record of handling things in a certain way; so it may be pertinent to examine any remedy to see if it's consistent with normal practices.
- Does the provision instill a sense of impartiality and integrity in the judiciary and the Attorney General?
Public confidence in the integrity and impartiality of the judiciary is so important to the Appellate Court that it was mentioned twice in its opinion. The Court's concern was primarily connected to the improper conduct of Judge Thomas Penfield Jackson.
- Does the provision have other positive consequences for technology managers and users?
While the legal objectives of a remedy are to terminate the illegal monopoly, restore competition, and be forward looking, at remedy in this market could produce immediate side effects for business and personal technology buyers.
- Does the provision fit current and emerging markets and technologies?
As the Appellate Court noted, it's difficult to predict how well a remedy might work in dynamic markets such as technology.
Our ten-point remedy provision tester is by no means scientific or based on any known academic test for remedy effectiveness, but we think it represents the expectation that justice will be served. If you have suggestions on how the remedy tester can be improved or just want to make a comment, please let us know using ZDNet's TalkBack below. We want to hear from you.
Linda Eads, a professor of law at Southern Methodist University, contributed to this report. Eads has taught courses on the Microsoft antitrust case and, prior to joining the SMU faculty, served as the Deputy Attorney General for the State of Texas where she was in charge of the state's antitrust division. After Eads' tenure with Texas' Attorney General's office, Texas pursued Microsoft on antitrust charges, but later ceased its antitrust actions.
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