The comments have poured in about my suggestion that the government seek an injunction blocking Windows XP. Most are positive, but quite a few folks would like to boil me in oil.
I’m constantly amazed at some people’s willingness to put all their trust in a company that has shown, again and again, that it doesn’t deserve our trust. It’s as if we’re supposed to push the Reset button on our healthy skepticism every time Microsoft introduces or says something new, on the principle that maybe, finally, the company has learned how to behave honorably.
Well, I see no sign of that. But I do think it’s worth exploring some of the thoughtful critiques of my suggestion.
I’m most troubled by Dave Farber’s note, which he posted to his Interesting People mail list yesterday. He says, in part, “I am opposed to seeing anyone forced to be subject
to “prior constraint” on the release of a product while a court and
litigants attempt to re-design software by court hearings and legal briefs
endlessly blocking what is bad and good and surely that will be the result
of any attempt to block Windows XP release.”
If Microsoft has violated the law with XP, do something after the product ships, Dave said.
I hadn’t thought about the free speech angle to this. Code is speech, and prior restraint is an absolute disaster.
But Dave’s solution has already been tried, in 1995 with the consent decree and later with the antitrust trial. Let’s see what happened. By the time the government caught up to the next round of bad stuff, which included the browser “war,” and by the time the courts ruled on that, it was too late to make any difference.
If a company violate the law to maintain and extend a monopoly, and then move onto the next field of battle once it has conquered the one that gets them hauled into court — when it’s too late to matter — I don’t see how the law is ever capable of catching up.
Here an analogy, which I grant is imperfect. If the cops spot a previously convicted burglar heading to the window of the next house he’s going to break into, and he’s carrying a crowbar and saying out loud that he’s about to burgle that house, can the law do anything to prevent the heist? I think it can. And should.