The Microsoft settlement
Friday, November 2, 2001 by Dave Winer.
This morning the US Department of Justice announced a settlement in the Microsoft antitrust case. We've been following this case since its inception, so I wanted offer a few comments on the settlement.
It clearly doesn't go far enough, and requires the government to be involved in the architecture of Microsoft's operating system and network services, such as SOAP, in an intimate and impractical way.
The settlement doesn't go far enough because it does nothing to restore competition to the browser market. Had these requirements been in place when Microsoft did not already have monopoly share in the browser market, it might have been effective. But today there is no Web browser that has enough share to realistically compete with Microsoft's software, nor are investors likely to take the chance of competing with Microsoft based on the weak safeguards offered by the settlement.
The browser is at the center of this agreement because the Web that it browses is the most important new medium for free communication, and Microsoft has shown that it will move to control the content that is accessed through its browser.
Relying on the Bush Administration to restrain Microsoft in this area does not provide much assurance. This is exactly the kind of role in free speech that the framers of the US Constitution were trying to prevent, especially in the First Amendment.
The government, only in very exceptional circumstances, is allowed to control the speech of US citizens. Will they understand the free speech implications, when asked to make a decision about the next incarnation of Smart Tags, and if they do, will they act to protect speech? I'm not confident about either of those issues.
Further, since the network is more and more where software comes from, the role of the OEMs, Dell, Gateway, Hewlett-Packard, IBM, etc, are greatly diminished. To think that they would exercise the rights the government is trying to protect is unrealistic. Today they are simply distributors for Microsoft's monopoly. I don't see any way that's going to be changed by the agreement.
The only way to protect the Web from Microsoft's control is to separate the browser from Microsoft. This would have structurally forced the open APIs that the government is now going to try to enforce through oversight and negotiation.
I wish them much luck in negotiating with Microsoft in these areas. I've learned that only market forces influence Microsoft, and therefore, the only way to force open APIs is to force Microsoft itself to depend on them. Separating the browser would have accomplished that, and would have encouraged future software monopolists to be more ethical in competition than Microsoft has been.
In conclusion, as an independent developer and investor, I don't believe that the agreement will, in any substantial way change or limit Microsoft's practices, nor is there much hope that Microsoft will self-impose restraint in the interest of a vibrant software marketplace. It is not a good settlement for independent software developers.