Pretty good Amy Harmon piece in this morning’s New York Times about Bill Gates’s bravura testimony last week in the Microsoft anti-trust trial.
I confess that I was disappointed; I’d so been hoping for something like the last 10 minutes of a classic Perry Mason episode. If we couldn’t have that, maybe a replay of his awful taped deposition from the first phase of the trial. But no, for three days we had the Good Strong Gates, who was more than willing to engage the states’ lawyers and not give an inch on Windows as Windows.
But if the testimony showed anything, it showed that the phrase “spirit of the agreement” isn’t likely to spill freely from Gates’s lips. The courts have said that Microsoft’s market position is monopolistic, and what they’re arguing about now is what everyone should do about it. Any imposed remedy is going to be closely hewed to, and the only people more willing and more able to split hairs than lawyers and 5-year-olds are techies: “But if you didn’t want the software to crash the computer, why wasn’t that in the spec?”
There’s no contract on Earth that can bind someone who doesn’t want to be bound by it, and remedies for bad faith are ugly and expensive. That’s why I don’t think that anything but a structural remedy — breaking up Microsoft — will work. Microsoft doesn’t think it’s done anything wrong, and insists that any remedy with teeth is unworkable. And its history has amply demonstrated that whatever non-structural remedy is imposed, we’ll be back in court again within five years.
The Microsoft witness after Gates, an executive named Paul Jones, told the court that it is well within Microsoft’s right to design Windows in such a way that other programs won’t work with it. Nothing wrong with cutting out RealAudio or Java or Norton Anti-Virus. It’s Microsoft’s world, after all, and we’re just living in it.
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