Nice article here, simply underscores many of our arguments on the thread. The whole article is worth reading, I pulled out a few paragraphs.
-Judge Jackson's anger at MSFT clouded his judgement. Justice was not blind.
-Judge Jackson's decision makes it difficult for a settlement to be made, even with the appointment of Judge Posner
-DOJ /FTC and Congress need to establish ahead of time what constitutes a monopoly for information age based companies. They have been lazy and did not do their jobs. DOJ proceeds with a monopoly case without knowing what defines monopoly for this age. So the MSFT case serves as a proxy for their ineptitude. Unfortunately, due to the charged emotions and jingolistic nature of the process and actors involved to include the MSFT hating companies like SUNW and ORCL on the sidelines, the worst possible decision regarding what constitutes a monopoly will emerge. All high tech companies will rue the day.
An Angry Judge Won't Help Teach Microsoft the Law
By Michael A. Cusumano
Sunday, November 28, 1999; Page B04
CAMBRIDGE, Mass.?U.S. District Judge Thomas Penfield Jackson's "findings of fact" in the Microsoft antitrust case do not constitute the dispassionate analysis one would expect of a federal judge. It is one-sided and betrays the judge's apparent anger toward Microsoft. The document is far less constructive than it could have been had cooler heads prevailed, and it might make finding acceptable remedies in this case more difficult because it leaves Microsoft little room for compromise or negotiation. It also complicates the search for solutions to a larger problem--defining "antitrust" in today's high-technology markets.
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The problem Jackson faces today is how to get over his hard feelings toward Microsoft as he brings the case to a final resolution. His overwhelmingly negative categorization of Microsoft in the findings of fact document could result in ill-considered, drastic remedies such as forcing the creation of incompatible versions of Windows. Such measures would harm consumers as well as the entire U.S. software industry, especially if the result is years of paralyzing lawsuits as private parties sue to obtain retribution from Microsoft for past wrongs as an illegal monopolist. Every high-tech company with a dominant market share could become subject to frivolous litigation.
Seemingly, the only way out of this bleak scenario is for Microsoft to settle before the court hands down a final ruling. With a settlement, Microsoft would avoid being branded as an illegal monopoly as a matter of law, which could help it in any future cases brought against the company. Judge Jackson himself is encouraging Microsoft to settle and has appointed Richard Posner, chief judge of the 7th U.S. Circuit Court of Appeals, as mediator. Unfortunately, the findings of fact give Microsoft and Judge Posner little room to negotiate.
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Companies that dominate new high-tech markets might behave differently and avoid being branded illegal monopolies if they better understood the rules of the game. The challenge now for Judge Jackson is to start creating a set of effective antitrust rules that Gates and company can live with and respect--not remedies simply designed to punish a misbehaving child.
Michael Cusumano is a professor at the MIT Sloan School of Management.
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