A Monopoly Game with New Rules ; the Ruling Weakens Microsoft, but Also Shows How Hard It Is for Antitrust Law to Keep Up with Technology's Pace
Paul Van Slambrouck, writer of The Christian Science Monitor, The Christian Science Monitor
For years, many consumers have felt like tortoises next to the blurring speed of technology change.
A deeper and possibly more troubling question arises from this week's landmark antitrust ruling against Microsoft: Can America's judicial system keep up with the Computer Age?
Judge Thomas Penfield Jackson left little doubt that the nation's century-old antitrust rules still apply to contemporary corporate behavior. Just as earlier rulings against Standard Oil and AT&T exacted heavy prices for using monopoly positions unfairly, Microsoft seems set for stinging remedies after further hearings later this year.
But in the two years since the Microsoft case went to trial, the technology landscape has changed so significantly that some see the ruling as having less and less practical impact, making it all the more difficult to find effective remedies.
In short, legal experts see a growing gap between courts' power to impose standards and an industry that regularly remakes itself, its products, and its ways of doing business.
"This case illustrates the challenge quite well," says Bryan Ford, a law professor at Santa Clara University in California.
If technology's pace of change eventually slows down, he says, the problem will solve itself. "But if you believe ... this period of ferment will not slow, you should worry, because the judicial system is already too slow now to give us practical remedies in a responsive time frame."
For instance, when this case went to trial, the industry was animated by "browser wars," and Microsoft was charged by the Justice Department and 19 states with unfairly leveraging its dominance in operating-system software to also control programs for accessing the Internet. That war against rival Netscape is effectively over and Microsoft won. Analysts say the legal issue is moot.
"If the purpose is to right what has already been wronged, I don't think much will happen. No government agency is going to force people to take Microsoft's Internet Explorer off of their computers," says Frank Catalano, a technology analyst in Seattle.
Still, government prosecutors haven't ruled out urging Judge Jackson to impose the ultimate hardball remedy: Breaking up Microsoft into smaller units.
But just as Microsoft's dominance has become a seemingly unalterable fact of life in some spheres, broader changes are afoot that have lessened its role in the technology universe. The judge's formidable task: finding remedies based on past practices that are fair in a new setting.
"The whole technology world since the trial [began] is very different," says Haim Mendelson, co-director of Stanford University's Center for Electronic Business and Commerce.
Two trends in particular cut Microsoft's clout, he says. The first is the proliferation of rivals to the personal computer, devices such as smart phones and the Palm Pilot, where the Redmond, Wash. …