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Likely MS remedies: breaking up is hard to do

We look at the options the court faces

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Special report The last few days have seen a plethora of possibly remedies to deal with Microsoft put forward, but the point many of them miss is that remedies that harm users would be foolish. Nor is it the court's role or objective to punish Microsoft, in this case at least. Any approach to remedies has to start at the present position: there is no going back to re-argue issues, the facts or conclusions established during the trial. Even Microsoft is unusually subdued; it hasn't put forward any substantive argument that the findings of fact are untrue, or that the conclusions of law are illogical. Presumably it is keeping its powder dry, and hoping to put its faith in the DC Circuit Court of Appeals. Antitrust law is based on the assumption that a competitive marketplace is more likely to result in a better products for users, at better prices. The remedies to return to a situation where competition could flourish must be in the realm of the legally possible, and achieve what is best for consumers, Microsoft's competitors, and possible new entrants. There is a requirement that an effective way should be found to stop the illegal behaviour, and to reduce barriers to market entry for future competitors. Punishment is not directly part of the remedies, but it is a likely consequence. As we have pointed out many times, there can be no financial penalty as a result of the present case, although it may well transpire that Microsoft suffers very seriously as a result of the imposed remedies. To a fair extent, this has happened already in that Microsoft has lost clout with much of the trade press, and many users are waking up to realise that they have never had a choice of operating system. The best systematic appraisals of Microsoft and consideration of remedies have been at the two Appraising Microsoft conferences arranged in Washington by that old pro of righting wrongs, consumer advocate Ralph Nader. Users, the industry, and Microsoft (at the second conference on possible remedies) put forward detailed views, and the proceedings of these meetings provide some rich background material. Nader commented on Judge Jackson's recent Conclusions that "Microsoft doesn't respect antitrust laws... can't be trusted... and has shown contempt for any court-imposed changes in its conduct". He called for the break up of the monopoly into operating systems, applications companies, and the divestment of its browser. There are two broad possibilities: behavioural remedies, and structural or divestment remedies, with each having several variants. The consent decree that Microsoft signed was a behavioural remedy, and in view of subsequent events, there is little expectation that such an approach would be any more successful this time around. ® Next part: Behavioural remedies - curbing Microsoft's conduct

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