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Fling Windows Open to All

January 28, 2002

The years-long court battle over Microsoft could end up being worthwhile for consumers with too few choices and too much glitchy software that crashes or freezes because it doesn't quite fit with Windows. The right conclusion to the suits could open a whole new world of programs that actually work on Windows PCs.

With last week's lawsuit against Microsoft charging that it illegally shoved the Netscape Internet browser out of the market, AOL Time Warner joins nine state attorneys general and at least 100 private plaintiffs who are suing Microsoft for monetary damages. Many of their grievances against Microsoft's illegal, anti-competitive bullying are legitimate. AOL, a latecomer to the suits first filed in 1995, had held off until it decided the government's settlement deal with Microsoft was insufficient.

With another huge lawsuit on her docket, U.S. District Judge Colleen Kollar-Kotelly still has to decide how she will order Microsoft to remedy its bad marketplace behavior when the government's antitrust trial resumes in March. Kollar-Kotelly should not let the flood of litigation devolve into a lottery-style cash bonanza. Her focus should be on the future, not on the past--specifically, on creating equal business opportunity so software competition can thrive.

The judge may not be able to resolve all the anti-Microsoft litigation in a single ruling. Legal scholars can't even agree on the mathematics of calculating the monetary harm of Microsoft's past anti-competitive conduct. But Kollar-Kotelly can help stem the tide of lawsuits and give innovators a chance to compete by forcing Microsoft to disclose Windows coding to outsiders. Microsoft's secrecy has essentially prohibited software developers outside its Redmond, Wash., headquarters from writing programs that run on Windows without crashing.

A requirement that Microsoft disclose coding was at the heart of an out-of-court settlement reached with the Bush administration last November. Nine states, including California, rejected the settlement because they thought it had glaring loopholes. In a brief to Kollar-Kotelly last week, three top U.S. economists detailed how those holes would let Microsoft continue withholding coding.

Kollar-Kotelly should demand that Microsoft hand outsiders the software keys they need to write programs that work on Windows. Software disclosure would not undercut Microsoft's ability to profit from selling Windows. It would only increase Windows' legitimacy by helping its operating system run the sort of programs that ordinary PC users want, not what arrogant Microsoft bosses think they should use.

By focusing both sides away from monetary claims and toward the larger and more legitimate issue of how to increase competition, Judge Kollar-Kotelly can see to it that some good comes out of the seemingly interminable Microsoft trial.

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