The AAPL "look and feel" case is the biggest handled by the MSFT lawyers to date. In that one, MSFT's strategy was to "refuse to try the case in the press" (Neukom speaking) and to slowly and methodically narrow the case. By the time they got to the Supreme Court there were only a handful of icons still in question, and AAPL looked weak for bringing the suit at all. I've read comments from John
Sculley, AAPLs CEO at the time, that interpret the events along these lines as well.
There are several differences between this case and the Apple case. The most obvious one is that they are not fighting Apple, they are fighting the US Government. The implications of this are, among other things:
1) The government has the (pardon the pun) home court advantage.
2) The government can change the laws to further its advantage.
3) The press is an extremely important field of battle.
Just take a look at item # 3. Item # 3 means that Microsoft simply cannot win on technicalities. If they are perceived to have won on technicalities, then there will be popular approval for hurting Microsoft in some other way.
Seems to me that's exactly what they are doing here. They got the DOJ to state in court that it's the icon, not the code, that they want removed. I think that's a weak position.
As far as having the icon removed being a weak position for the DOJ, well, you've got to be kidding. It was a huge loss for Microsoft. Suppose someone put a 50 megabyte super-dooper program on your hard drive and DIDN'T TELL YOU ABOUT IT. Would you use it? The interface between the user and the computer is the key to all of this, and Microsoft and the DOJ and everyone else (well, I guess almost everyone else) knows it. That's why Microsoft cares about the initial screen, about the boot-up sequence, about the initialization processes, etc..
Look at what happened after the icon was made optional. Computer makers are actually removing the icon and in some cases substituting Netscape's at the request of some major customers. This is proof that the DOJ's actions increased consumer choice. The DOJ can (and will) point to NEC's IE icon-less laptops as evidence that they are on track. Nevermind the manifest problems of having Netscape standardized on millions more machines with all the negative implications for ActiveX, COM, Microsoft-Polluted-Java, etc..
And once that icon goes, well, what's next? Automatically running Netscape on startup? OEM-designed shells overlaying the desktop? It begins a path which might lead to future Windows versions being pushed down into the lower levels----the plumbing over which computer companies put whatever they want up on top. So yeah, this alleged 'weakening' of the DOJ's case came at a great expense for Microsoft. |
