AOL-Time Warner
On Getting Away With Murder

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By Goofyhoofy
January 28, 2002

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So AOL has launched a civil suit against Microsoft. Technically, it's "the Netscape division" which has launched the suit, but why quibble?

Without rehashing a lot of history which everybody knows, who remembers the O.J. Simpson trial? Were there a lot of people who thought he was innocent? And yet the verdict came back "Not Guilty", and he walked.

Now. Who remembers the second trial, the civil suit brought by the Goldman family against O.J. for monetary damages? Having failed to get justice in the criminal system, the Goldman's fought - and won - a civil declaration against O.J. for $8.5 million. Did it change the world? No. Did it change his life? Probably only a little. But it gave the Goldman family - and, by proxy, the millions of people who thought "he got away with murder" - the satisfaction of "justice", however flawed and incomplete.

AOL has sued Microsoft not so they can get some monetary damages, although those would be welcome, I'm sure. They did it because the antitrust trial turned out to be a sham. Microsoft played its cards incredibly stupidly at first and then recouped at the last minute by painting the judge as "biased" and managing to postpone "sentencing" until a friendlier regime came into power.

The "findings of fact" have not been challenged, the "verdict" was "Guilty", but in the penalty phase the process imploded.

AOL has launched the civil suit because it allows them to "return to the scene of the crime", in full public view, and puts the Justice System on notice that a "finding of fact" is not a trifle, and that the laws governing monopolistic behavior do, in fact, exist and may not be ignored at the whim of one philosophical group over another, at least until the laws are changed.

There are many folks, some reasonable and some not, who simply want to evade the issue by pretending that antitrust law is "wrong", but that's not how "the law" is supposed to work. The law exists (in my view for good reason, but that is irrelevant to the argument.) If the law exists, it must be enforced, and if enough people, including the paid lobbyists of Microsoft think otherwise, there are ways of changing the law. That has not been done, nor even attempted.

AOL is looking at the continuing predatory tactics of Microsoft, the use of the monopoly to leverage into yet more markets, and saying "enough is enough."

There was real damage to competing OS systems by Microsoft's licensing tactics. There was real damage to competing middleware firms by Microsoft's bundling practices, tied to the OS. There was real damage to Netscape by Microsoft's exclusionary distribution tie-ins, tied to the OS. There is a real threat to other ISPs and to AOL in particular by Microsoft's use of the OS to leverage into the access market.

That is what AOL is saying, and doing, by launching the lawsuit. It's an attempt to force the courts to enforce the law, and it's important.

I'm willing to submit that some, perhaps all of the above would have failed anyway if Microsoft's products won because of their superiority in the competitive marketplace, but they never had that chance.

AOL is trying to stop Microsoft from "getting away with murder."



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