- The Washington Times - Saturday, September 8, 2001

In a judicious determination that will undoubtedly provide prompt and effective relief to both consumers and jittery stockholders, the Department of Justice announced on Thursday that it will no longer seek to break up Microsoft Corp., nor will it pursue additional proceedings on the software bundling issues addressed in the original complaint.
The decision was a triumph of the rule of reason, which, coincidentally enough, was the standard that the U.S. Court of Appeals for the District of Columbia ordered applied to the bundling issue when it unanimously overturned Judge Thomas Penfield Jackson's boneheaded breakup order.
It is worth remembering that, before he handed down his breakup edict, Judge Jackson never held hearings on potential remedies. That could have been because he was too busy talking to reporters, or composing catchy nicknames for Microsoft's management, such as "miscreants" and "gang members." Yet, beyond the anti-business bias of Judge Jackson, a few questions remain paramount: Did Microsoft break established rules of doing business? Were consumers harmed? If so, what remedies are appropriate?
In the first case, there seems to be little doubt that Microsoft occasionally engaged in predatory practices, such as through its now-discontinued exclusive marketing arrangements with hardware and software manufacturers. Yet there remains great doubt that consumers were harmed by such actions. Consumers were almost certainly not harmed by Microsoft's bundling practices, and no one would dispute the positive effect that Microsoft's profitable actions have had as regards the fortunes of most consumers even those not fortunate enough to own shares of its stock.
During the heady days of the Internet bubble, Janet Reno's Justice Department pursued judicial remedies against Microsoft out of all proportion to the potential harm done to consumers and without any sense of the potential harm that those remedies could have caused.
Wisely, current Attorney General John Ashcroft's Justice Department seems to be applying a more Hippocratic standard. In addition to dropping both the breakup and the bundling demands, the Justice Department plans to ask the District Court for additional time to "investigate developments in the industry since the trial concluded, and to evaluate whether additional conduct-related provisions are necessary," as it attempts to fulfill its stated goal of obtaining "prompt, effective and certain relief for consumers."
The Justice Department should also remember that consumers, and for that matter, business owners, can only be certain of effective judicial relief when the free market is allowed to function without the fetters or fears of judicial caprice.
In finally finishing its fickle, disproportionate pursuit of Microsoft, the Justice Department has shown that it has gone anything but soft.


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