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The Un-Microsoft Un-Remedy: Law Can Prevent the Problem That It Can’t Patch Later


The Problem:

In order to address the question of remedy, I would like to map out what I see as the key issue in the Microsoft case.  We need to be clear about the fundamental problem alleged— and perhaps soon proven— if we are to speak a common language about a remedy. ...

To be sure, monopolistic empires can fall without having to be pushed, even when they are engaging in strategic “bad behavior” designed to artificially extend their tenure. A team sneaking a few extra players on the field can still lose the game. I concede this even as I claim that the company fairly winning the battle to dominate the last generation of networked software— particularly operating systems— then has an advantage that it can press to have an unfair shot at dominating the next, too. This creates a consistent anticompetitive problem for which a remedy ought to be explored, even if sometimes— slowly, inefficiently— the problem can evaporate on its own. There is no reason to wait for chance, or extraordinary incompetence in the arenas in which market players normally compete— product quality, price, marketing, etc.— to be the undoing of an actor that has been leveraging monopoly power to great advantage. Indeed, ideally the market could be structured so that monopoly power can’t be leveraged to begin with.