- The Washington Times - Sunday, July 1, 2001

In a fit of common sense rarely seen inside the Beltway, the U.S. Court of Appeals for the District of Columbia overturned U.S. District Judge Thomas Penfield Jackson's ordered breakup of Microsoft and removed him from any further participation in the matter.
The court unanimously ruled what most of us figured out long ago that while Microsoft may have engaged in a few unsavory business practices, it is hardly a monopoly, and that, given the nature of the software business, there is little reason to stifle an innovative company that has the profitable habit of making consumers happy.
The appeals court was clearly unhappy with Mr. Jackson, who had the appearance of an activist rather than an impartial judge throughout the proceedings and who ordered the break up even though he held no hearings on potential remedies. Still such remedies are expected to be far more proportional to the minimal harm that other companies and consumers may have experienced from some of Microsoft's more predatory practices, such as its discontinued exclusive marketing arrangements with software and hardware manufacturers, and its design features with strong monopolistic colorations. As Richard Epstein, interim dean of the University of Chicago law school pointed out, "These anti-trust violations … require relatively modest judicial intervention, namely undoing a few product-design decisions and contract provisions."
The appeals court also established a new common sense provision to the question of potential harm from bundled software, declaring that a "rule of reason" should be applied that there needed to be evidence that consumers were actually hurt in some fashion through such an arrangement.
Indeed, the whole point of the Microsoft case should have been to ensure that the playing field was even for all the competitors, not to slant the rules fairness. To that end, the essence of the new economy is innovation and the free flow of ideas. Unlike tangible commodities, whose production or transfer can theoretically be monopolized, ideas and innovation cannot. Microsoft became a giant not by eating competitors or hammering customers, but by producing a product that people want.
Microsoft's competitors are doing the same thing in the hope that they will one day be as big, or bigger than, Microsoft. So long as regulators don't stifle information flow and activist judges are restrained by common sense constitutionalists, they eventually might.

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