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Prosecution demands could force MS to open up source code

States insist that OS monopoly should be broken

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MS on Trial The Department of Justice and US states officials will insist on Microsoft's monopoly of the operating system market being broken, according to a story in today's New York Times. No precise mechanism for doing so has yet been identified, but according to state officials quoted in the Times piece several measures are being considered.

But it's significant that it still seems to be the state attorney generals who're giving good quote, while the DoJ remains largely impassive. A coalition of US states has been mounting the antitrust action jointly with the DoJ, but it's the latter which has made most of the running in the courtroom, while the attorneys general have been largely confined to making belligerent noises from the sidelines.

The demands of the states have so far been seen as being considerably more extreme than any the DoJ was likely to make. But if the states, as their representatives claim, are now completely in accord with the DoJ, the measures Microsoft faces are likely to be pretty drastic - too drastic, effectively, for Microsoft to agree a negotiated settlement. The DoJ and the states will want all of the problems identified by Jackson in his findings to be addressed, which means that any remedies will have to operate in several areas, with the overall objectives of forcing Microsoft to compete fairly in the OS market, and injecting some credible competition.

A break-up of the company might be called for, but the most likely break-up into three units, of OS, applications and Internet, would still leave the OS company with a monopoly of its market. So break-up couldn't be the only measure to be imposed. Jackson thinks that Microsoft holds a monopoly, and that the nearest things to competition it has, the Mac, BeOS and Linux, can't shift it. So the remedies the DoJ and states will call for here will likely have to inject competition into the market, with some form of opening up of the Microsoft source code being one of the most likely contenders.

There are several ways this could be done, but all will be totally unpalatable to Microsoft. The source code could be made public, either with Microsoft retaining control or with supervision being transferred to an independent standards body, as Sun cheekily recommended should happen a long time ago. Alternatively, Microsoft could be forced to license the source code to several other companies, who would then be able to build their own versions of Windows.

Finding companies who'd want to do this, however, might turn out to be tricky. For such a move to be a successful remedy from the prosecution's point of view the new competitors would need to be ready and willing to compete directly in Microsoft's core OS market. DR/Novell would have been eager to seize this particular bone several years ago, but there are few obvious candidates now. Sun?

Sun has tried to leverage its way to access to Windows source in the past, and would certainly relish such access now, but it would want it for purposes of interoperability, not so it could build a shrink-wrap Windows clone for the Intel desktop space. And while some Linux developers could certainly use access, there's little sign that any of the participants in the trial have sufficient grasp of open source for this to be a seriously considered remedy. But here's a thought. Caldera, the inheritor of DR-DOS and its lawsuit portfolio, will be kicking off its own Microsoft antitrust trial in the new year.

If that one goes badly for Microsoft, then surely some kind of unified settlement is possible. Caldera gets access to source as part of its winnings, and a DR-DOS-Linux combination reawakens competition? It could happen. ®

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