The Gnat versus the Borg [Microsoft]

described the background of the present case, and the evidence on whether Microsoft has been coercively packaging Internet Explorer (IE) with Win 95 to swallow up the Internet browser market. Part I concluded that it should be difficult for the DOJ ultimately to persuade the court that the anti-tying clause of the 1996 consent judgment in US v. Microsoft covers what Microsoft has been doing with IE. It also suggested that the DOJ will probably need to bring a new antitrust case to combat these practices. The article also expressed some doubt about the ability of the DOJ gnat to stampede the Microsoft elephant. Part II now advances from Part I's metaphor of a gnat biting the backside of an elephant to the metaphor of trying to cope with the Borg. December ruling Since the publication of Part I, the district judge issued a preliminary order ruling on the DOJ's motion. The motion asked that Microsoft be held in contempt and be enjoined from Win95-IE tie-ins pending the outcome of the contempt proceeding. Judge Jackson ruled, December 11, 1997, that the 1996 decree was not so clear and unambiguous that he could fine Microsoft for contempt. He noted that to fine the defendant the court must resolve any ambiguity in the decree in favor of the defendant. Also, the government must establish contempt by clear and convincing evidence—not just a mere preponderance of evidence. On the other hand, he felt that while it remained to be decided whether Microsoft had violated the decree, nonetheless he didn't agree with Microsoft's interpretation of the " integration " proviso in the decree. (This was the proviso in section IV(E)(i) of the 1995 consent judgment that said: 1) Microsoft could not tie licenses of operating system software to licenses of another software product: but 2) Microsoft could develop integrated software products.) For additional details on the court proceedings, see the " Preliminary order " on the box next page. The real issue As most observers recognize, the fundamental issue lurking under the smoke and rhetoric is whether Microsoft should assimilate functionality into Windows that another vendor could practicably market as a stand-alone product. What went on with the IE 3 icon is a mere preliminary (see Part I, again). As will appear, the behavior about which the DOJ is now exercised is objectionable and anticompetitive. It can be cured, although section IV(E)(i) of the …