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After four years in court, the Microsoft antitrust case is finally hitting another milestone: final arguments by the software company and nine states and the District of Columbia. The holdouts are in U.S. District Court seeking tougher penalties than those settled on by the U.S. Justice Department and nine other states. Andrew Gavil, a professor of law at Howard University in Washington, D.C. who specializes in antitrust issues, discusses the difficulty of forcing Microsoft to abide by a ruling and the benefits to consumers, if any, from the lengthy legal battle.

PCW: You were quite critical of the initial settlement last November. Is the main difference between that and the holdout states the breadth of what Microsoft must disclose to competitors, and how its practices would be overseen and enforced?

Gavil: In some ways, the biggest difference of opinion is over the commingling of code. Arguably, the federal settlement didn't directly address the commingling of code. It allowed for this proposal that Microsoft was touting [a utility called Set Program Access and Defaults that lets you hide icons, built into the upcoming Windows XP Service Pack].

The commingling finding was a conclusion by the district court and the court of appeals that how Microsoft chose to write Windows was anticompetitive and couldn't be justified. Well, allowing you to hide icons gets at a symptom, but it doesn't get at the cause of the problem. I think that's what the states with the modular Windows were trying to get at: That part of the violation has to do with how Microsoft writes its software.

PCW: Is the states' proposal, as Microsoft says, weak because it doesn't specify exactly how a modular Windows might work?

Gavil: The states can't quite spell out every little technical detail because they simply don't have the same amount of information that Microsoft has. They focused on trying to show . . . that at least the option they were offering is a workable option. One approach would be to say to Microsoft, here are the legal parameters; you need to now produce the product that can do that.

PCW: But in putting the onus on Microsoft to produce, couldn't the company stall or say it was impossible to do?

Gavil: The framework in the XP Embedded version [is] already there [without] the middleware [programs] that weren't always a piece of Windows--the browser, the Media Player, Instant Messaging. Clearly these were pieces that didn't always exist as a part of Windows. And if they didn't always exist, then Windows could exist without them being integrated.

PCW: Aren't we asking Microsoft to do something that we've asked no other software vendor to do, which is to remove features that are a selling point?

Gavil: This is important to understand about both the state and the federal options. It's not that Microsoft can't continue to offer XP in its current glory with all of the features that it wants to add. The point is that it must also offer other options so that [PC vendors] and consumers who don't want to take the full-fledged product can make other choices. And that, in essence, is the point of it all. . . . If it turns out that . . . very few consumers choose RealNetworks, at least that would be a competitive death knell for RealNetworks instead of an enforced one from Microsoft.

PCW: But aren't consumers left in the same spot, if vendors just take the highest bidder to decide which browser or media player will go on systems?

Gavil: In essence, this happens in supermarkets. If you want to get a new product on the shelf, given that shelf space is limited, you pay the supermarket to give you shelf space. So in essence you would have bidding for what goes on the desktop. But you would have to assume at some point that the [vendors] want consumers to be happy, and they're not going to push a product that creates service headaches for them and creates unhappy consumers.

PCW: If non-Microsoft products bundled with Windows create problems, who'll handle the tech support?

Gavil: The answer is something that would have to be worked out. Clearly Microsoft would have a very good argument that those calls should not be coming to Microsoft.

PCW: Is this an oversight in the states' proposed remedy?

Gavil: Yes. The states remedy is . . . a basic framework. It's not providing every detail.

PCW: Should it?

Gavil: No, I wouldn't expect it to, because I don't think that it can. I assume there will be a round of refining to the specifics and that the judge might even say to them, Here's what I've decided to order and here's what I'd like both of you to comment on and give me some more specifics.

But I think your question gets to a deeper issue here, which is Microsoft's position. [It would] rather pull the product from the market than deal with this sort of problem. How do you, through court process, change Microsoft into being cooperative? Unfortunately Microsoft's incentives wouldn't necessarily be with making it easier for other software manufacturers to diminish the likelihood of any incompatibilities. It would probably like nothing better than to see a lot of incompatibilities emerge, driving consumers back into the hands of the full-fledged product, which, of course, Microsoft would happily agree to support.

If you remember, there was one moment during the enforcement hearings where the judge turned to the Microsoft lawyers' table and said, "And of course I assume anything I order will be followed to the letter." It showed that somewhere in the back of her mind she was a little bit concerned about her ability to actually order something and have it followed.

A lot of this is new ground. We haven't been in the position of trying to tell a software manufacturer exactly how to go about doing this. On the other hand, is it more complex than AT&T was? No. The difference was that AT&T was really cooperating and working to implement the plan that it had agreed to.

PCW: The states are asking the courts to force Microsoft to show them its source code. Is it fair to force Microsoft to do what no other software maker has to do?

Gavil: Microsoft already shows its code to chosen vendors. The states' remedy would simply eliminate favoritism. Are we asking Microsoft to do what other software makers don't have to do? Yes. But the bottom line is Microsoft was convicted of antitrust violations. Had it not conducted business in a way that was anti-competitive, it would not be facing these penalties.

PCW: After four years of litigation, have we gained anything at all?

Gavil: It's impossible to say yet. We may not really know for another five or ten years whether the remedy--whatever it may turn out to be--really did have any significant effect on equalizing competition.