Hi All,

I thought this to be an interesting article.  Hard to figure where and when
accessibility might fit into the maze of government legal action.

Kelly

>
>Posted at 12:46 p.m. PST Monday, March 9, 1998
>------------------------------------------------------------
>
>Microsoft Moves Deftly around Legal Challenges
>
>
>By Paul Andrews, The Seattle Times
>Knight Ridder/Tribune Business News
>
>Mar. 8--Microsoft may sting like a bee competitively, but legally it seems
>to float like a butterfly, changing direction just as the net of government
>enforcement tries to snare it.
>
>Altering contracts with Internet service providers and suggesting it may
>change its approach to content "channels" on the Windows desktop, Microsoft
>in the past 10 days further demonstrated its malleability when faced with
>accusations of unfairness.
>
>The moves raise a prickly conundrum for regulators seeking to curb
>Microsoft's influence: In such a fast-changing industry, can such a company
>really be subject to conventional regulation and a reactive legal process?
>
>For now, a narrow Justice Department case is focusing only on the issue of
>whether Microsoft has violated terms of a 1994 antitrust consent decree.
>Justice contends the company agreed to sell Windows to computer makers only
>if they installed Microsoft's Internet Explorer browser for viewing content
>on the World Wide Web.
>
>Yet another test is expected in coming weeks. Justice Department
>investigators have hinted they may launch a broad antitrust action based on
>integration of the browser into Windows 98. The company, however, says it
>so far has no plans to offer an alternate version when it releases the
>software this spring.
>
>A broader action ironically might confirm Microsoft's argument that the
>industry changes too quickly for regulation to succeed. The ink on the
>consent decree was barely dry three years ago before new antitrust
>allegations arose, and Microsoft has been the subject of unflagging
>scrutiny since.
>
>Yet it either has warded off potential confrontation, as it did by
>abandoning a proposed purchase of Intuit, the maker of Quicken, that would
>have given it leverage over the financial-software market, or has won on
>key issues, forcing investigators to alter lines of inquiry.
>
>The current case is before the Circuit Court of Appeals, which already has
>put on hold Judge Thomas Penfield Jackson's appointment of a special
>master, Harvard cyberspace expert Lawrence Lessig.
>
>"We really believe, at the end of the day, that the legal process works,"
>said Bill Neukom, Microsoft's lead attorney, in a recent interview. "We're
>betting on it every day with the licenses we draft and enforce and live
>by."
>
>Microsoft is so good at living within the letter of the law that some
>critics suggest laws need to be changed to address its power.
>
>Yet virtually no one at a 4 1/2-hour Senate Judiciary Committee hearing
>last week in Washington D.C. spoke in favor of new legislation. At the
>hearing, held to examine competition in the computer industry, most argued
>that existing legislation should simply be enforced.
>
>Perhaps most surprisingly, Microsoft's two leading antagonists -- Sun
>Microsystems' Scott McNealy and Netscape's Jim Barksdale -- showed little
>willingness to put their money where their mouths were.
>
>McNealy acknowledged that his company is looking into possible legal action
>against Microsoft, presumably in the high-end workstation market where
>Microsoft's Windows NT is cutting into Sun's Unix-based product line. He
>made it clear he preferred government enforcement, however.
>
>Barksdale went so far as to foreclose a civil suit by his company, saying
>Netscape probably could not afford it.
>
>Microsoft's critics have suggested that the company, as a monopoly, must
>play by different rules. But no one has offered a clear definition of what
>those rules are or how they might be enforced. Casting general concepts
>such as predatory behavior and exclusionary contractual practices in the
>concrete of federal law could prove futile given Microsoft's ability to
>find creative ways of working within the law.
>
>Microsoft defused one munitions stockpile with its decision to alter
>contracts with Internet service providers that prevented them from
>promoting rival Netscape's Navigator Web browser. The decision was
>announced three days before the Senate hearing. Whether the provision could
>have bolstered an antitrust claim is unclear -- the providers could still
>supply, help configure and support Navigator -- but in any case it took
>away a talking point.
>
>Surprisingly, the Senate committee avoided entirely the other looming issue
>-- Microsoft's merging of its browser functions with Windows 98 -- the
>issue that could potentially be the focus of a broader antitrust suit.
>
>Nor did the committee show any interest in more sophisticated proposals to
>curb Microsoft's power. They include the highly unlikely option of
>volunteering to be a regulated monopoly, as AT&T did (and as panel member
>Stewart Alsop proposed in Fortune magazine recently).
>
>Another proposal suggests that Microsoft promise to publish all APIs
>(applications programming interfaces), the mortar and pestle programmers
>use to build Windows applications. Microsoft has long been accused of
>either delaying or withholding certain APIs to give its programmers an
>advantage over the competition.
>
>The company denies that to be the case, saying that it freely makes
>APIsavailable to all comers. Melanie Hoelscher, legal spokesperson for
>Microsoft, said the company maintains on-campus labs where developers can
>come and work.
>
>So what was left? The committee did leave open some lines of inquiry:
>
>--Predatory pricing. Microsoft's practice of giving strategic products
>away, including its browser and Internet Information Server, got close
>scrutiny. Competitors, however, also give away products to establish market
>presence.
>
>--The question of whether Microsoft prevents computer makers from offering
>Netscape's browser on new equipment. Sen. Mike DeWine, R-Ohio, read several
>quotations gathered the previous day by staff members posing as computer
>buyers. The staff members quoted Dell sales representatives as saying the
>company was not allowed to supply Navigator to customers because of its
>relationship with Microsoft.
>
>Dell founder Michael Dell responded that his company would, if asked,
>install Netscape's browser, but only on computers ordered by companies or
>large accounts.
>
>Contradicting Dell's statement, a Dell sales representative later said that
>Dell would ship a computer with Navigator installed, but it would add $66
>to cover licensing and installation costs. Microsoft's browser was still
>free, but Dell would ship the computer without it if asked -- "because of
>all the Justice stuff on TV."
>
>A Dell spokeswoman said that although Netscape offers Navigator free, Dell
>is still obliged to pay for the browser until its current contract with
>Netscape expires.
>
>The case is reminiscent of reports in 1993 that computer makers refused
>requests to install the OS/2 operating system instead of Windows on new
>computers, citing contracts with Microsoft that prevented it.
>
>The practice was never proved, and Microsoft contracts were written in such
>a way that the company would not have to bar PC makers from supplying
>alternative systems. Under the contracts, computer makers simply paid a fee
>to Microsoft for every PC they shipped, even those without Windows
>installed.
>
>(There were benefits to both parties for the arrangement, including
>efficiencies in bookkeeping and anti-piracy.)
>
>The 1994 consent order with Microsoft was meant to rectify the situation.
>
>Microsoft has repeatedly maintained that it does nothing to prevent
>computer makers from including Navigator on their systems. Netscape says
>otherwise.
>
>A key question is whether Microsoft prevents content providers from
>advertising or promoting rival products such as the Netscape Navigator.
>Under repeated questioning from Senate committee Chairman Orrin Hatch,
>R-Utah, Microsoft Chairman Bill Gates acknowledged that to get premier
>placement on Microsoft's TV-like "Channel Bar," partners were asked not to
>promote Netscape's browser or be similarly featured in Netscape's
>equivalent, called "Netcaster."
>
>Hoelscher compared the arrangement to a cross-promotion between Burger King
>and Disneyland.
>
>"You wouldn't expect Disneyland to go off and do a similar deal with
>McDonald's," she said.
>
>The hearing suggested that any anti-competitive action against Microsoft
>is, in the long run, going to be a long run. The company has proved time
>and again to be the capitalist equivalent of Houdini, capable of wriggling
>out of any antitrust bondage. Ultimately the law may prove less a factor in
>altering Microsoft's behavior than its image with partners, customers,
>software developers and the all-important consuming public.