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'Monopoly, predation' – trade body brief foams at MS

Legally dubious, mayhap, but a rollicking good read...

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MS on Trial In some ways it's a surprise that the amicus brief for the DoJ was written by the Software and Information Association Industry Association, but perhaps the DoJ knew that the Association for Competitive Technology was being invited by Microsoft to do its Amicus. Certainly, "the world's largest trade association representing the interests of firms in the software, information and Internet industry" stacks up well against the ACT, which it says was "founded in 1998 specifically to oppose the enforcement of the antitrust laws against Microsoft". Nor does the SSIA "screen prospective members to ensure a uniform point of view", as the brief says. SIIA president Ken Wasch and Washington lawyer Gary Cohen are credited with writing the brief, but it would be surprising if there had been no assistance from some heavyweight general counsels from member companies. It's a rousing call to arms, plain-spoken, and more like a speech than a brief. with accusations coming thick and fast: "textbook predation", "collecting monopoly rents" with Windows, and the like. It's also an easy read that rehearses again the arguments that have become familiar during the trial. The gist is that Microsoft's monopolistic abuses are unjustifiable, and should be condemned; that consumers have thereby been harmed and the expanding monopoly further threatens their welfare; and that enforcing the antitrust laws against Microsoft would advance innovation and consumer welfare. The brief sets out the fears of many SIIA members, but devotes little space to legal argument, preferring to quote from the business and trade press. The brief matches the somewhat rickety ACT brief by taking a relaxed view of the inadmissibility of new, unsworn evidence, and jumps in with such observations as: "in a strategy reminiscent of the trial record here, Microsoft now bundles its FrontPage Express Web authoring software with Internet Explorer (and thus with the desktop edition of Windows 2000), while bundling its Web server, IIS, with the server editions of Windows 2000. It will not be difficult for Microsoft to ensure that FrontPage adds proprietary file extensions to Web pages created or edited with that product, so that Web pages created or edited with FrontPage work properly only on IIS, which in turn works only on Windows 2000." It points out some interesting titbits that have sometimes become buried in the weight of the evidence. For example, in testimony Microsoft went on about what a threat Linux was to Windows, but on is web site it dismisses Linux as non-threatening. A useful point that does not seem to have been made previously is that OEMs and integrators are "eager to differentiate their products and services by providing additional consumer choice and customisation" but Microsoft does not allow this with its tying and boot restrictions. An interesting precedent is cited that apparently shows that: "Monopolisation may be proved even when there is no evidence 'that prices are raised and that competition actually is excluded' so long as there is proof 'that power exists to raise prices or to exclude competition when it is desired to do so'. The maintenance of a monopoly through exclusionary activity is presumed to cause consumer harm by artificially depriving consumers of the benefits of competition. That is something Microsoft surely did, by prolonging and reinforcing its monopoly through a broad array of anticompetitive acts." The SIIA fear is evidently that the antitrust courts might "avert their eyes from its anticompetitive practices to avoid inflicting harm on a smoothly running industry." ®

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