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Netscape/AOL: Legal Fantasy

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By EdMcDowell
January 24, 2002

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I read about the lawsuit on Wall Street Journal,
http://interactive.wsj.com/articles/SB1011733865183642760.htm, and this part really caught my eye:

"The suit also seeks an injunction "to prevent further antitrust injury to Netscape and to restore competition in the market for Web browsers," and to enable other forms of software called "middleware" to compete with Microsoft operating systems in the personal computer market."

There are a few fantasy aspects to this lawsuit:

-- Fantasy 1: Concerned parties can envision requirements to level the playing field in the future (here, by "concerned parties", I mean the judge, the lawyers, the plaintiff, and all the industry wags behind them). I find it extremely difficult to believe that people can come up with a set of requirements that would work in the future. The future will have many changes in technology we currently do not envision.

-- Fantasy 2: Legal injunctions can possibly "restore competition". If IE is the better browser now, which many independent reviewers will agree (no, I don't gottalink, please do some research yourself), what is to get people to use Netscape? Can't people use Netscape now? Why is their not now competition? Even Judge Jackson ruled that Netscape distributed 100's of thousands of copies of its browsers during the time the supposedly illegal behavior occurred. The market will decide who uses which browser, not a judge.

-- Fantasy 3: "Middleware" is the next battleground. Microsoft has been constantly improving its operating system, especially in the area of component services. COM+ kicks tail, and it comes with the OS. The ABM's see this as anti-competitive because they want to sell their incompatible, proprietary component services as add-ons. Yet again, the ABM's wish to protect their own corporate interests, not what is good for customers. It is right and proper for the ABM's to want to protect their own corporate interests, they owe this to their shareholders, but trying to get the courtrooms to do it is getting tiring.

-- Fantasy 4: "Ours doesn't stink." What's to stop Microsoft from counter suing Netscape/AOL regarding its IM monopoly? Netscape/AOL has constantly and consistently dragged their feet in getting their IM service to interop with other IM services. This could have been done long ago. But AOL hasn't wanted to do this, because it wants to gather as many people as possible into AOL. What would happen if Microsoft put out a bulletin saying that Microsoft email programs would not interop with non-Microsoft email programs? People would have a conniption fit, I tell you. But AOL refuses to let its IM interop and people are ok with that? Where are the lawsuits here?

In short, I do not believe that a legal injunction (even if the perfect one could be devised!) could do anything to bring back Netscape's market share. Cats, the tide, and bad habits come back. Market share for has-been browsers is long gone.

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