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Jewish World Review June 14, 2000/ 11 Sivan, 5760

Wesley Pruden

Wes Pruden
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Consumer Reports

Taking a byte
out of innovation -- JUDGE THOMAS PENFIELD JACKSON has the sympathy of everyone who has ever watched Windows crash on his work at 2 o'clock in the morning, with nobody to call for help.

The window doesn't even have to slam shut. Bill Gates' famous operating system, the software that turns the computer into a glorified typewriter (or adding machine), for example, has the soul of a tin-pot dictator. It tells you what you can do and how you can do it, and if you don't like the choices Mr. Gates has made for you, tough.

Some earlier computer software — WordPerfect 5.1, based on DOS, comes quickly to mind —allowed the working stiff at the keyboard to make a lot of choices that Windows makes now.

A lot of this computer talk is a geek's gibberish to most people, but it's relevant to one of the most important lawsuits in years. To the exploding number of Americans for whom computers are tools of the trade as well as implements of pleasure, the litigation between the Justice Department and Microsoft is up close and personal.

For a lot of people, the Microsoft lawsuit has enormous economic implications, for pensioners and investors who have never gone near a computer keyboard and who, with a little luck, never will, but whose livelihood and ability to pay rent and buy groceries in their retirement years will depend on the investments they're making now in the economy that Microsoft has helped write.

The language of Judge Jackson's remarkable decision, to split Microsoft into two competing companies, suggests that maybe His Honor has had bad experiences with Windows himself, and has taken out his pique on Microsoft. A lot of us envy him, and applaud in spite of ourselves.

But sometimes the head must tell the heart to shut up, or knock it off, and common sense says this is one of those times. Judge Jackson's decision, which has been called "bizarre," "goofy," "weird," "stunning," "incredible" and a lot of other things besides good, is certainly the most remarkable bit of injudicious "trust"-busting since the late Judge Harold Greene got up on the wrong side of the bed one morning two decades ago and decided to dismantle the world's best telephone system.

In the Microsoft case, Judge Jackson seems to have gotten tired, if not bored, with testimony laced with big words and terms of art he didn't understand — words and phrases like "middleware" and "elasticities of demand." Computer geeks and nerdy lawyers can do that to a human who merely speaks English. So he just threw a hand grenade into his courtroom and the rest is the history now being made.

"It is hard to know what to make of a judge's rejection of expert comment," says George L. Priest, a professor of law at Yale and a consultant to Microsoft, in an essay in the New York Times.

"Witnesses from the two sides would no doubt be at odds, but the judge's unwillingness to assemble a record for both his own information and that of appellate courts is jaw-dropping."

Other lawyers who are not consultants to Microsoft suffered injuries when their jaws hit the table, too. This was not a case of breaking up a company that came about through mergers, like a half-dozen railroads combining themselves into an amalgamation. This was a case of a company, a company that didn't even exist two decades ago, organizing itself around a clutch of guys with a good idea who executed their vision better than anyone else.

Or maybe the Microsoft verdict was not really so jaw-dropping. This is where we are in America, where judges, even presumed strict constructionists appointed by Ronald Reagan (as Judge Jackson was), feel free to write their whims and hunches into the law, and if the rest of us object it's because we're too dumb to understand how majestic the law is, and how grand the lawyers and judges are.

Some of the language of Judge Jackson's decision suggests that he has had a little trouble getting on the Internet, dealing with Microsoft's browser, and finding what he was looking for. "Microsoft as it is presently organized and led is unwilling to accept the notion that it broke the law or accede to an order amending its conduct," Judge Jackson wrote. "There is credible evidence to suggest that Microsoft, convinced of its innocence, continues to do business as it has in the past, and may yet do to other markets what it has already done in the PC operating system and browser markets."

Nobody knows what the effects of the Microsoft judgment will be, assuming that it stands up on appeal to the higher courts. The days of Microsoft's nerdy belief in its own invincibility may be over, which is good, but the passionate dedication that it applied to invention and innovation may be over, too, and that is not so good.

JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.


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© 2000 Wes Pruden