One man's opinion..... The government has failed to prove important parts
of its case.
The claim that we attempted to monopolize the browser market fails
on two grounds. First, they can't prove, as they must, that we already
own at least 50 percent of that market.
Our ''friends'' at America Online handed us a second winning hand.
AOL, with 16 million users and growing, is set to be the new owner
of the Netscape browser. Thus we can argue that we cannot gain a
monopoly share of the browser market, given its current structure. In
short, we can't be guilty of attempting to monopolize something that is
impossible to monopolize.
All that is left of importance is the claim that we used illegal acts to
protect a monopoly in operating system software. The tying and
exclusive dealing claims are not important except for the support they
give this key claim. Here we do have problems, but those problems
could have been much worse.
The government did not make a strong case that we attempted to
undercut Sun's Java technology. If it had demonstrated that we
attacked not just one but two technologies that posed threats to
Windows, Judge Jackson would have greater leeway in ordering a
remedy. He might even have had cause to take away our exclusive
ownership of Windows.
As things now stand, we have a persuasive argument that any remedy
should be limited to allowing computer manufacturers and consumers
to replace our Windows browser technology with a browser of their
choice. If Judge Jackson orders broader penalties, we should be able
to contain the damage on appeal. I know even this will be a bitter pill
for you, but if the government doesn't get anything more out of this
case, I suspect you will learn how to live with it.
Rich Gray is an intellectual property and antitrust partner for
Bergeson, Eliopoulos, Grady & Gray of San Jose. He has |
