Antitrust Law Journal, Vol. 75, Issue 3, ABA, 2009; conference paper from the Searle Symposium, “The End of the Microsoft Antitrust Case?”, Nov. 15-16, 2007
This article looks at the remedy in the competition law case against Microsoft.
The perception that the remedy in the Microsoft has failed stems from the difficulty of designing workable rules to change the course of the software business.
- The consent decree that concluded the United State government’s antitrust case against Microsoft was entered in 2002, and due to be re-examined in 2007.
- Some see the decree as a missed opportunity to restore competition in software. But while stopping Microsoft’s illegal conduct was easy, the decree also had to be clear, enforceable, and anticipate potential competition problems. All this was very difficult.
- The DC Court of Appeals agreed that Microsoft had broken the law, but rejected a proposal for a structural remedy breaking Microsoft up into separate companies, because such a remedy was not tailored to addressing the illegal acts.
- Several provisions of the decree required Microsoft to make some details of its technology known to rivals, so they could make products interoperate with Microsoft products.
- In requiring Microsoft to disclose its intellectual property, the decree went beyond just stopping illegal acts to try to create more competition. These provisions have been very difficult to implement.
- Microsoft had never opened up its technology on such a large scale.
- Deciding what Microsoft would receive in return for its technology was difficult.