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Judge's helper Lessig rejects MS breakup solution

And no open-sourcing Windows either - pussycat, obviously...

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MS on Trial Microsoft's antitrust efforts have received unexpected help from Lawrence Lessig, trial Judge Jackson's favoured helper and the target of Microsoft 'bias' attacks earlier in the trial. Talking to the Washington Post, Lessig says that he doesn't think breaking Microsoft up would be helpful, and also rules out other 'nuclear' options. Microsoft will be less comforted by his view that increasing government impatience with Microsoft's behaviour may induce the prosecution to try to push the button. Earlier this week Connecticut Attorney General Richard Blumenthal, a definite hawk, assured the world on the courthouse steps that the government would seek "drastic and far-reaching" remedies, and that the language of the judge's preliminary ruling justified this. Lessig isn't currently advising the judge, just wandering around making observations, but they undoubtedly carry some weight. He thinks it would be difficult to draw breakup lines that would be both rational and would tackle antitrust issues. And he doesn't think making the Windows source public would help either, because as Netscape found, simply opening the source doesn't automatically result in widespread developer enthusiasm. If Microsoft source was opened and few either wanted or could afford to try to build rivals to Windows, then the monopoly wouldn't be addressed. But he does think opening up on the APIs would be helpful. This is a tricky issue because Microsoft reckons Windows APIs are public. Over the years and during the trial there have been persuasive arguments made that Microsoft gives preferred customers preferential access to APIs, and the judge concluded that this does happen. There's also the old accusation from the days of the productivity suite wars that Microsoft's own Office developers used 'secret' APIs, and of course got early access to the non-secret ones. You can however see the making of a possible deal here, if the judge consults Lessig further, and favours his views over the hawks in the government camp. Microsoft could present an opening of the APIs as a no-change or not much change situation, and in the short term at least a levelling of the playing field wouldn't hurt it much; it beat the hell out of the apps competition years ago, and has a lot of spare fat to burn before reinvigorated rivals would actually hurt it. But that could only be one component of a deal. It might conceivably help Linux carve out a more credible space as a Windows rival, but Judge Jackson would find it tricky to accept this as a serious way to tackle the monopoly. We might not all agree with him, but he's already set down his view that Linux is not a serious, immediate competitor for Windows, so by going the API route he'd also have to complicate matters by imposing other controls. ®

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