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'Freedom to destroy freedom and competition'

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With the expiry of the final appeal deadline in US versus Microsoft this week Andrew Chin, who assisted Judge Thomas Penfield Jackson in the case, has gone public, describing the outcome as a wasted opportunity on the part of the government. Writing in the Raleigh News & Observer, Chin says the consequence is that there will be no final ruling establishing whether or not Microsoft illegally tied IE to Windows, and that the law of competition in the software industry will remain unstable.

And he notes that "the road not taken - pressing Microsoft to offer a neutral choice of Web browsers for use with Windows" has begun to look more attractive in the light of recent security alerts. "By tilting Windows users toward Internet Explorer... over the past nine years, Microsoft has ensured that many consumers are using a less secure browser than they would if offered a neutral choice, and prevented other software companies from competing for these customers on the merits," he says.

The DC Court of Appeals' conclusion that Windows and IE are "physically and technologically integrated", Chin says, has created a "special antitrust immunity to license Windows and other 'platform software' under contractual terms that destroy freedom of competition... The courts have missed a golden opportunity to affirm the freedom to compete in the information age."

Meanwhile, today in Brussels Microsoft argues that its being forced to offer a version of Windows with no Windows Media Player would strike "at the very heart of Microsoft's business model and design of Windows", which strikes us as not necessarily constructive from the point of view of Microsoft's appeal, given that Microsoft's business model and design of Windows are fairly widely thought of as problems that ought to be tackled. Should the appeal fail, Microsoft will have to comply with an earlier Commission requirement that it offer Windows sans Media Player in Europe.

Earlier in the week, however, Microsoft general counsel Brad Smith said the comply would comply with the decision of the court, and had already spent millions putting itself in a position which allowed it to do so. This tends to imply that Microsoft has a compliant version pretty much ready to roll, despite WMP now being officially part of Windows in ways apparently similar to the way IE is. Allegedly. So it's possible we could see Microsoft just doing it, and skipping the protracted huffing and puffing about how broken Windows would be if it had to do it. On the other hand, near the beginning of the antitrust circus it did briefly 'comply' with a similar ruling on IE by putting out a version of Windows which was very broken indeed. So don't bet your life. ®

Related stories

MS EC appeal kicks off
EC 'supports special interests of rivals' - Microsoft
MS has Media Player - less Windows, just in case...

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