This is going to be a ramble, you've been warned up front. And of course, every bit of it is just my opinion.

The decision by the Court of Appeals to remand the case back to a lower court for reconsideration of the "breakup" remedy proposed by Judge Thomas P. Jackson didn't surprise me, nor did the court's order that a different judge should be assigned to the case. I think Jackson was biased against Microsoft, IMNHO.

Everyone should get a fair hearing in court, without exception -- even Billy Boy Gates.

Both sides are claiming victory; in fact, it's a mixed bag. While the court agreed that Jackson gave an "appearance" of bias, it also agreed with Jackson that Microsoft HAS exercised monopoly power. That's a major blow to Microsoft.

In plain English, a remedy WILL be proposed. Whether its the forced split of Microsoft's operating system business from its applications division remains to be seen.

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We're back to the classic arguments about business, free markets, and so on. Should Microsoft have the right to decide what belongs in the operating system? I say "yes" and I don't want the government interfering with it, either.

Take a look at Quarterdeck and Stacker, two companies that were basically killed by Microsoft. The former used to be #1 in memory-management software (SORELY needed when the 386 first appeared); the latter was built on a utility that would compress ("zip") files on the fly, allowing you to store much more data on your (then-expensive) hard drive.

When Microsoft decided to include HIMEM, EMM386 and DoubleSpace with the operating system, these companies were effectively driven out of business.

(Hold that thought on Stacker; we'll come back to it.)

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Now, if that's all there was to it, I'd say, "too bad, guys, that's how it goes."

To give you a truly silly example, suppose McDonalds didn't put ketchup on its burgers (for whatever reason). Suppose I set up a shop across the street from McDonalds that sold ketchup packets. I might do very well for a while; I might even build a national chain of ketchup-packet stalls.

But once McDonalds' market research showed that their customers wanted ketchup, they'd be very likely to include that ketchup with the burger. And this is where it gets cloudy: McDonalds would be very likely to supply that ketchup for free.

Is this anticompetitive? There's no doubt that it would kill my thriving business, but I have a hard time believing that McDonalds wouldn't have every right to do whatever it wished to its own burgers.

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Likewise, a lot of people have made a lot of money over the years "filling the gaps" that Microsoft has overlooked. Quarterdeck and Stacker are just two examples of many. (Norton/Symantec's "undelete" utility comes to mind, too.)

But their fatal mistake was in assuming that just because Microsoft didn't include such features in DOS 4 and Windows 3.0 that they would never do so.

Once Microsoft began including "the ketchup" -- HIMEM, EMM386 and DoubleSpace -- Stacker and Quarterdeck DIED. They disappeared. Too bad.

Now: what you just read is my interpretation of Microsoft's argument, boiled down to its essence. OK, so Netscape decided to jump on the Web bandwagon early on; didn't Microsoft have the right to see that customers wanted Web capability and add it to the operating system?

Sure they did. And if that's all there was to it, I'd agree with them in a minute. But it ain't that simple, folks. There's more to this story.

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The issue here is whether Microsoft engaged in predatory practices towards its competitors. "Predatory" is a broad term that's hard to define, but it's the key issue in Jackson's original decision -- which decision, remember, the appeals court just upheld.

As someone who's poked around in the internals of DOS and Windows for years, I have been frustrated at times by some of Microsoft's marketing claims which are patently false. I have been very concerned at some of Microsoft's marketing and programming decisions, many of which give every appearance of deliberate attempts to harm competitors.

And the real frustration for me, and the real problem in general, is that it's virtually impossible to explain these things to the layman. I daresay that few of you here have even made it this far in this silly post. (Or, maybe you just skipped through it, reading the first and last lines.) It remains to be seen whether anyone will even care about what follows.

(More to come ...)

-- Anonymous, June 29, 2001

Answers

Hey?!?!? What the?!?!?!?!?

Let's try that again....

Jonathan

-Yadda yadda-

-- Anonymous, June 29, 2001

Thanks for clearing that up, Jonathan. Some of us were wondering.

(How are you?!?!)

-- Anonymous, June 29, 2001

Jonathan,

The car manufacturers, in order to get the engines for the cars, had to install MSRadios, and sign agreements not to put in any others.

That's part of the predatory thing. Microsoft, by its own admission, DID force such exclusionary agreements on their end customers. This is probably where Microsoft's position is the weakest, because this is well-established in case law.

Zillions of examples: if I'm an independent insurance agent, Aetna or Cigna can't force me not to sell Integon or Progressive. (Speaking from experience.) They can't even do anything to discourage me from doing so; their legal departments decided years ago that the safest course was just to pretend that those signs for the other companies weren't on the wall of your shop.

MS modified the engines they were selling so that if you didn't have a MSRadio, the car would theoretically run more sluggishly, giving the competitors who did install the radio a competitive advantage.

Ah, there's the rub. That's what I'm talking about here. This is very, very difficult to prove and Microsoft hotly denies that they've ever done this. But that's for my "more to come ..."

-- Anonymous, June 29, 2001