November 1, 2002 5:55 PM PST
Perspective: Perspective: Machiavelli meets MicrosoftSee all Perspectives
Quoting the Florentine philosopher as she issued her landmark antitrust ruling, Kollar-Kotelly gave Microsoft most of what it wanted. Yet at the same time, she didn't rely on the software maker's good intentions to make sure the decision will stick.
But if her 300-plus page decision suggested Microsoft was about as trustworthy as a member of the Borgia family, Kollar-Kotelly nevertheless concluded that the stiffer remedy demanded by nine states opposing a settlement between Microsoft and the Department of Justice last November didn't fit the offense.
Lawyers and armchair quarterbacks will have plenty of time to split legal hairs, but the failure of the nine attorneys general to persuade the court ranks as a classic legal blunder. Machiavelli would have understood the new reality facing Microsoft. He also would have understood the folly of the politicians in this soap opera.
By asking too much, they wound up with nothing--although the states did their best to hide the sting and portray the outcome as a victory for competition. If so, I wonder what was the point--considering that Kollar-Kotelly put her imprimatur on the same basic deal that could have been sealed 12 months ago.
|Lawyers and armchair quarterbacks will have plenty of time to split legal hairs, but the failure of the nine attorneys general to persuade the court ranks as a classic legal blunder.|
All throughout this four-year saga, the states have never liked playing the role of second fiddle to their more high-profile colleagues in the Justice Department's antitrust division. When the first phase of the trial played out before Judge Thomas Penfield Jackson, the star was lead prosecutor David Boies, whose daily defenestration of sundry Microsoft executives grabbed headlines. Every now and then, a cashmere-clad Joel Klein would sweep into court and make a cameo appearance, only to get mobbed by a horde of reporters.
Who would you rather interview: the antitrust chief of the biggest law enforcement agency in the world or the attorney general of Iowa?
As long as they had a chance of taking home a political prize to their respective states, the AGs suffered the slights in silence. Once the DOJ struck a tentative settlement that left Microsoft relatively unscathed, the dissenting states went for the software giant's jugular.
Among other things, they asked the court to force Microsoft to open up source code to its Internet Explorer Web browser and possibly to the Windows operating system--the company's crown jewels. Then the states' lawyers decided to expand the definition of "middleware" beyond anything used at the original trial or at the appellate level. That was a stretch.
Unfortunately for the states, Kollar-Kotelly is not Jackson, who nodded off so many times during the trial that, after a while, I stopped counting.
This judge refused to impose a remedy beyond the limits of liability set by the appellate court. Kollar-Kotelly, no babe in the woods when it comes to commercial ambition, understands that Microsoft is still living in denial about breaking the law.
"Yet this minimization, however frustrating, does not require a remedy which prodigiously exceeds even an expansive view of the illegal conduct," she concluded.
Given the company's track record, skeptics may wonder whether Microsoft will try and wriggle free of the agreed-upon conduct restrictions, a la the consent decree it accepted in 1994 that was supposed to regulate its marketing practices.
Machiavelli wrote that a prince may never lack legitimate reasons to break his promises. But Kollar-Kotelly is planning to exercise her "full panoply of powers to ensure that the letter and spirit" of her decree get carried out.
Charles Cooper is CNET News.com's executive editor of commentary.