Much as last week’s judicial decision on media concentration was a great victory, today’s ruling by the U.S. Court of Appeal for the D.C. Circuit — upholding the government’s 2001 antitrust settlement with Microsoft — was a terrible loss. Microsoft Prevails in Antitrust Appeal [InternetNews.com]. Not only because I was counsel to the appellants, as “third fiddle” behind former Judges Robert Bork and Ken Starr (renowned lawyers whether one agrees with their rather extreme politics), but more importantly because the court just failed to grasp the significance of the issues it was dealing with.
For instance, even though Microsoft was found to have unlawfully monopolized the PC operating system market by bundling Internet Explorer into Windows, the court ruled that a decree (i.e., a remedy) that does NOT require unbundling is adequate and in the “public interest.”
This is really bad news for antitrust enforcement and utilmately for consumers. The market has moved far beyond the “browser wars” between Netscape and Microsoft that gave rise to the case in 1995, but an end result that allows a convicted monopolist to do the same things to other upstarts — and thus squelch competition — that it did to drive Netscape from the market is inexplicable.