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The Pulpit
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Weekly Column

For Tomorrow We Comply: Why Microsoft's Competitors Should Be Merry, If Only for a Moment

Status: [CLOSED]
By Robert X. Cringely
bob@cringely.com

"Be careful what you ask for," says the proverb, "because you might get it." The warning goes double this week, a week that would normally be dominated by news from the big Comdex computer show in Las Vegas, but is instead all about Microsoft's legal woes. I know, I'm tired of this story, too, but it's important for reasons even some of the principals don't know.

The big news this week, of course, is Sun Microsystems having been granted its request for a preliminary injunction against Microsoft. The boys and girls in Redmond have 90 days to either bring their Java code into compliance with Sun's, or remove it entirely from Windows 95, 98, NT, and Internet Explorer. Sun is aglow about this, of course, not only because it is a kick in the head to Bill Gates, but also because it is a strong indication that Sun will win in at least this round of its legal fight with Microsoft.

There is lots of talk, too, about the implications for the broader Microsoft antitrust trial. It will be difficult, the legal eagles say, for Judge Penfield Jackson to throw out the Department of Justice's claims about Java given the precedent of this ruling in another federal court.

Yup, it's a bad day for Microsoft, but it's not really a good day for anyone else. Beneath its exuberance, Sun has to be worrying. And if Sun isn't worrying, it should be.

Oh, we'll go through Microsoft's usual whining about Java being second-rate technology they were just trying to improve to help consumers (second-rate, in this case, always means "not owned by Microsoft"), but in the end, the injunction will stick, and Microsoft will have to decide whether to conform to Java or rebel. My money is on rebellion.

Remember that Bill Gates decided to license Java from Sun in an abrupt change of course back in 1995. Prior to that moment, Microsoft was determined to fight Java, offering a clear alternative technology to Java for the Windows environment — a technology 100 percent owned by Microsoft. The logical thing for Microsoft to do at this point is to turn back the clock. It is very likely that, rather than move into compliance with Sun's version of Java, Microsoft will just pull some new code out of the lab, label it as a Java-killer, then throw a billion marketing dollars behind it in an attempt to kill Java in the only market that really matters to Microsoft — Windows.

Sun doesn't believe Microsoft will dare follow this course, but Sun is wrong. Microsoft has 90 days to make up its mind, and 90 days is a long time in Redmond.

So what happens if Microsoft abandons Java? Plenty. With all the money and all the market share, combined with a willingness to leverage both, Microsoft can mount a withering anti-Java campaign. And unlike 1995, this is a time when many people are questioning Java performance. Microsoft can label Java as a "Unix technology" and take it on using the same arguments that have been doing so well for Windows NT. It's baloney, of course, but baloney often works. Sun, which doesn't even make a profit from Java, should enjoy the moment while it can.

That old proverb works a second way, too, as I realized last week at a party in San Jose. It was the 25th anniversary bash for Fenwick & West, one of Silicon Valley's largest high technology-focused law firms. I was there as a Fenwick & West client because I pay more in legal fees than health insurance premiums — a LOT more. Some of that caviar was bought by ME.

The gala party was at the new Tech Museum in San Jose. As long as Claude Stern, my lawyer and protector, was buying the champagne, I decided to do a little opinion research among the slightly inebriated but off-the-clock lawyers and their clients. The two questions I asked were: 1) Will Microsoft in the end lose the larger antitrust case currently on trial in Washington? and; 2) If Microsoft does lose, what will be the effect on other high tech companies? Understand that F&W does not, to my knowledge, represent Microsoft.

Wow, were these results interesting! Most of the F&W clients I asked said they thought Microsoft would lose. Most of the F&W lawyers I asked said they thought Microsoft would WIN. The result evidently hinges on the question of whether or not consumers have been hurt by Microsoft's actions. "The law is clear," claimed one lawyer. "Antitrust is not there to protect competitors but to protect consumers. If you can't show that consumers were hurt, then you can't prove antitrust. Sure, Microsoft is a bully, but that's not illegal — it's not even news. And remember that so far all we've seen is the government's case. Microsoft will do a good job, too, when it's their turn to present their case."

But what if Microsoft loses here and then loses again on the inevitable appeal? These answers were even more surprising. The clients were generally clueless, seeing little impact on their own ways of doing business as a result of a Microsoft loss. But their lawyers saw it differently, because any legal precedents apply to everyone.

"If Microsoft loses, it will mean that there has been some reinterpretation or extension of traditional antitrust law," said one lawyer. "This happens, of course. The law changes as we change, and it should. But I'm not sure these companies — the very ones that are asking for change — are ready for it."

Why wouldn't Microsoft's competitors be ready for new legal precedents that bring Redmond under control? Because the tactics Microsoft is getting hammered for are common practice in the PC industry. Bare knuckles is what it's all about, and has been for a long, long time. It's just that in this case, we are being given a look inside one company — Microsoft. If we looked inside another company, would it be all that different?

"If Microsoft is a monopolist, then so is Intuit," said one lawyer. "And Intel? Microsoft is gentle compared to Intel."

Of course, it might be very good if the rules are changed. I'm not saying they shouldn't be changed. But I am saying it will certainly be different for everyone.

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