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Consumer activist Nader lashes MS at Remedies conference

Wide-range of axes heard grinding in Washington last week

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MS Remedies Ralph Nader, the legendary American consumer activist who came to fame in the 1960s for declaring war on General Motors and winning, has turned his attention to Microsoft's business practices. Nader's Which Remedies? meeting in Washington on Friday was the second in the Appraising Microsoft series that Nader had sponsored (the first was in November 1997). Microsoft had been invited to co-sponsor the meeting and to provide half the speakers, but had again declined to do so, although some speakers who reflected Microsoft's viewpoint had been suggested by Microsoft, and they accepted invitations to speak. The purpose of the meeting, at the Carnegie Institution in Washington, was to discuss appropriate remedies for dealing with Microsoft, should Judge Jackson find for the DoJ. Four groups expressed their views as to what remedies should be imposed on Microsoft: consumer advocates, economists, lawyers, and the industry players. A constant problem was any lack of agreement on terminology, so that, for example, when the breaking up of Microsoft into separate companies was discussed, this was variously referred to as creating Baby Bills, structural remedies, and vertical breaking. It proved easier to get general agreement about the goals for dealing with Microsoft than the means by which this could be achieved. Remedies directed specifically against Gates did not find much support. The more general feeling was that it was necessary to remove the ability of Gates to be able to use market power illegally. There was only one mention of decapitation as a solution, but a long-term ban, as in securities cases, on Microsoft conducting certain business practices, such as acquisitions, was thought to be appropriate. It was perhaps surprising that although the open source software (OSS) movement had gained a great deal of momentum, most speakers did not appear to have analysed in any detail how this might impact possible remedies for dealing with Microsoft. A practical aspect of getting to grips with Windows source code, as has been suggested if Windows were judicially declared to be an essential facility, was its formidable size. Unfortunately Richard Stallman, the originator of the GNU licence and viewed by many as the founder of the open source software movement, was unable to be present because he was in Australia. But there is a need for an OSS/Linux view to be taken into account during the formalisation of any proposed outcome. If there was any agreement, it seemed to be a common desire that the government should not be involved in technical line-drawing to define product boundaries: the judicial hacking of Windows was not on. There was also much cynicism as to whether the court could prove effective in the detailed supervision of Microsoft's conduct, and conduct remedies were not generally favoured by those present. The turnaround over the last 18 months was marked - the controversialists are now the Microsoft supporters, rather than those who considered that Microsoft's market power should be reduced. There was no agreement about whether IE should be unbundled, with some thinking it too late, and others believing that unbundling remedies were appropriate. Bundling was seen as a way by which Microsoft maintains its monopoly and prevents operating system from being commoditised. Arguments that the best product wins were regarded as spurious, as was the myth that funding could be found to develop alternatives to such products as Excel. All in all, there remains some disappointment that more radical and innovative solutions were not discussed. There is an implicit assumption that Windows 9x and NT should be allowed to continue, despite their considerable shortcomings. Perhaps there was a residual desire not to do that much harm to an American icon that was acting like a naughty child. Punishment was rarely considered - and the present case precludes any financial penalties, and almost no attention was paid to restitution for the [alleged] damage that Microsoft has inflicted on its competitors. Many times it has been asserted that technology is somehow different from other industries (for example in the speed of evolution, and the tendency for monopolies to develop), and that different remedies are required in technology situations). But on the showing in Washington last Friday, only the tired old remedies were trotted out, for the main part. Some serious new thinking is required, and possibly some new law. ®

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