Far be it for me to defend Neukom, who is probably one of the most abrasive, obnoxious SOB lawyers in the profession (or so the stories I've heard go). But here's my take on the situation:
Does anyone here think that Neukom didn't have an obligation to tell Microsoft personnel to tone down their emails a few years ago? Or tell them to not be so stupid as to go to Netscape and offer to split the industry? Or to give antitrust training to marketing personnel like Intel does (that info was from the Economist) ?
I agree that at least some of these things were probably stupid, if that is what happened. The Netscape meeting, if it happened that way, and had it resulted in an agreement, would have been a clear violation of Sherman 1.
But let's step back a moment and look at results:
Intel is taking the quiet, accommodative approach, "go along to get along." Microsoft appears to have abandoned that approach, in favor of a more confrontational, "take no prisoners" approach more in keeping with its overall corporate style and culture.
To read the press, and base your expectations on the amount of praise levelled at each company, you'd expect Microsoft to be up to its ears in alligators and Intel to be skating home free, on the regulators' good side.
And guess what: Microsoft is up to up to its ears in alligators.
But what did Intel's strategy get it? All that antitrust training -- and Intergraph still got its TRO. All that backroom dealing and soft-peddling, and the FTC is still going to sue them.
I certainly in no position to second-guess Intel's legal strategy. I don't know enough about it to have an informed opinion. But looking at the publicly available results, it appears both companies are pretty much in the same place: both are being sued twice for antitrust violations -- Intel by two separate parties, neither of which looks to go away any time soon. Microsoft is being sued twice by the same party, but one of those lawsuits looks like it is about to go away.
Or how about offering a crippled Windows 95 in response to Jackson's request to offer an IE-less OS? And then they backed down at the last minute, with nothing to show but a pissed off judge and more bad press? Can anybody here argue that that was an example of competence?
I doubt I will argue to your satisfaction, but I submit that it was.
The Consent Decree is ambiguous. It says that Microsoft cannot condition the licensing of any "product" upon the purchase of another "product." It does not say anything about licensing an icon, or that forcing the licensing of only part of the product is not the same thing as forcing the OEM to take the whole product.
So Microsoft needed to get this cleared up. And, it needed to make the point that the government is not competent at designing software. In spite of the fact that the situation was a public relations disaster for a short while, I think it accomplished both objectives. And the deal Microsoft worked out in the end, that the company could comply by simply removing the icon from the desktop, removed the least amount of code from the package the OEMs have to take, which I assume was also one of their objectives. Overall, it's not a bad outcome.
Of course we'll never know, but I question whether the government would have been so accommodating had it not been placed in the position of pointing out the icon-removal alternative in public first in response to Microsoft's offering of a "crippled" Windows 95.
Getting Compaq and Dell to snap to attention at a NY conference while arguing that they're not a monopoly?
Microsoft even makes retreats look bad. Giving a few of the smaller ISP's some more freedom the day before the Senate Conference? Yeah, that'll convince the Senators that everything is OK.
I agree that some of the PR stunts and caving in on everything the government wanted was not a great strategy. But I guess they just wanted to appear to be accommodating and hopefully make the regulators go away. Obviously, that didn't work.
. And Bill Gates not answering Orrin Hatch's questions has to go down in history as one of the stupidest things ever done in a Senate Hearing.
What was he supposed to say: "Yes, Senator, I am an evil monopolist" "Yes, Senator, I beat up on innocent OEMs"?
I would have answered some of the questions differently, but I can say that because I didn't have to face them with 90,000 volts of klieg lights in my face.
But good lawyers? Give me a break.
It's been a public relations disaster, I agree, but the outcome in legal terms could have been a lot worse. Measured by outcomes, I would say Microsoft's legal strategy has been about as effective as can be expected -- maybe better. |
