DOJ stands with Microsoft

R. Hewitt Pate, the U.S. Assistant Attorney General for Antitrust, issued a statement last week about the European Commission’s ruling against Microsoft. Far from being on the side of consumers and a free market, Pate’s remarks nestle cheek to jowl with the monopolist itself. It even threatens — on Microsoft’s behalf — the relationship between the United States and the EC if the Europeans dare to act like sovereign nations and put the interests of their citizens ahead of Redmond’s. It’s like waking up one morning to find your district attorney, who has sworn an oath to protect you from the bad guys, issuing press releases on behalf of the biggest crook in the county.

NewsForge contacted the Department of Justice requesting an interview with General Pate to discuss the statement, but the DOJ declined our request. A DOJ spokesman explained that they believe the statement stands on its own. Perhaps it does, although “stand” may be too strong a word.

Pate wrote: “The United States’ Final Judgment provides clear and effective protection for competition and consumers by preventing affirmative misconduct by Microsoft that would inhibit competition in ‘middleware’ programs, such as the web browser that was the subject of the United States’ lawsuit and the media player that is the subject of the EC’s action today.”

Since it is clear from Microsoft’s behavior with Windows Media Player that the “Final Judgment” has done nothing to prevent Microsoft from doing as it did with the browser — and for as far as the eye can see, with any and every new innovation to come along — Pate’s comment lacks internal consistency. The two ends of the statement wiggle against the sharp barb of truth which skewers it.

Clear and effective protection for competition? Every clueful pundit in the technical world has weighed in with the observation that the settlement has done nothing at all except perhaps to strengthen the monopoly’s grip on the industry. Indeed, many feel that it gives Microsoft a stronger basis than ever to continue its predatory, illegal, anticompetitive acts. Pate’s statement is prima facie evidence that such a view is correct. It is indistinguishable from a Microsoft press release. And it shares all the credibility and integrity that implies, even though was issued by the United States Department of Justice.

Pate’s innovative view of reality doesn’t end there. He went on to say “The Final Judgment, for example, prohibits the use by Microsoft of exclusive contracts or other provisions that inhibit competition, prohibits anticompetitive manipulation of icons and default settings, and requires Microsoft to provide information to allow ‘interoperability’ of competitors’ software.”

In fact what it does is to prohibit some of the things Microsoft has done in the past that violate antitrust law. It explicitly leaves the door open for Microsoft to find new ways to break the law today and in the future. That is what is threatened by the otherwise rather weak (except in comparison to the bootlicking settlement “negotiated” by the DOJ) ruling of the EC: the ability of Microsoft to simply change its methods to achieve the same illegal ends. For example, if Microsoft had been found guilty of literally stealing gold from Fort Knox, the plea bargain arrangement “negotiated” by the DOJ would prohibit them from using the same hacksaw to cut the same bars.

Pate protested the fact that the EC ruling requires “code removal.” He wrote “The EC has today pursued a different enforcement approach by imposing a ‘code removal’ remedy to resolve its media player concerns. The U.S. experience tells us that the best antitrust remedies eliminate impediments to the healthy functioning of competitive markets without hindering successful competitors or imposing burdens on third parties, which may result from the EC’s remedy.”

What our experience in the United States actually tells us is that the natural collusion of corporate greed and bureaucratic corruption is strong enough not only to protect the monopoly from any and all meaningful restrictions on its behavior at home, but to actively and publicly shield it from remedies beyond our borders. Or in the words of Pate’s statement, “Sound antitrust policy must avoid chilling innovation and competition even by ‘dominant’ companies.”

As inane and insane as it is to speak of chilling innovation at Microsoft, there is a chilling aspect to the DOJ statement. Pate says “The continued success of this working relationship is particularly important in the context of global markets, where the sale and use of products stretch across borders.” He threatens whatever goodwill might be left between the U.S. and its European allies on behalf of predatory monopoly.

I am not a lawyer, but I watch TV shows about them. I heard a line at the end of one of them Friday night that seems particularly applicable to this situation. A woman is explaining to a co-worker that her father had been a law professor. He always explained to his students, she said, that the goddess of Justice was not blindfolded so that she could dispense justice impartially. Instead it was to keep her from having to see what was being done in her name. Were she to see Pate’s statement on the EU ruling, she might run off in search of a more permanent way to avert her gaze. Like a hot poker to gouge her eyes out.