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The Nation: Microsoft's Fatal Error

Nov 16, 1999, 07:23 (6 Talkback[s])
(Other stories by Eben Moglen)

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"Judge Thomas Penfield Jackson's factual findings in United States v. Microsoft, released November 5, spell the doom of Microsoft as we have known it. Forget what you hear about "might change on appeal." Judge Jackson's legal conclusions, which he hasn't yet announced, will be subject to very careful appellate review all the way to the Supreme Court, if Microsoft wants to go there. But no one is likely to mess with his facts. The trial judge is the one who hears the witnesses, and higher courts respect the difference between live evidence and the cold record too much to change his factual findings. Those facts can be used against Microsoft in other litigation, of which there will soon be plenty, without having to be proved all over again...."

"But the hired talkers do have one point: We won't need drastic remedies to fix the Microsoft mess. Antitrust remedies don't have to be about punishing misbehaving competitors if there is a better way to restore competition. As Judge Jackson makes clear, the basic problem is that Microsoft hasn't had any viable competitor in the operating-systems business. But if he crafts the right remedy, it could have one very quickly: Linux. This free-software operating system, Judge Jackson recognizes, was built by tens of thousands of volunteers worldwide, has millions of users and runs sophisticated server computers at least as well as Windows NT."

"To make Linux a full competitor with Windows would require small changes in Microsoft's rules for dispensing information about how others' programs use the Windows APIs. If those and similar legal and technical obstacles are removed, Linux-based systems would be able to run all programs written for Windows computers. Existing users could switch operating systems without changing the programs they use every day. As Judge Jackson found, there is no alternative competitor on the horizon anywhere close to achieving that level of compatibility with Windows."

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