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The 1974 Tunney Act is a poor, forlorn piece of legislation. Designed to keep the public's interests at the center of the Department of Justice's antitrust strategy, the act requires the government to solicit public comment before it finalizes any antitrust settlements.
But antitrust cases having long ago taken a back-seat to the likes of the hockey-dad trial in the public's imagination, few people ever comment on most such settlements. And few cases ever turn on the trust-busting musings of the citizenry.
U.S. v. Microsoft is, however, "not your usual antitrust case," in the words of one attorney watching the case.
Last November, the Justice Department and Microsoft signed a deal to settle the three-and-a-half-year-old antitrust case against the software company, but under the Tunney Act, the public had until Monday to comment on the deal.
All of the comments are not yet available to the public but will be published in the Federal Register at some point in the future.
According to both Microsoft and the loose alliance of forces who don't like Microsoft, thousands of people submitted briefs on the proposed deal. But it remains unclear, attorneys said, what -- if anything -- will come of all these opinions.
Depending on who you are (and, in some cases, who you're being paid by), the proposed Microsoft settlement is either too weak by a mile, too harsh to bear, or just what the doctor ordered.
The agreement, signed after the government's initial attempt to split the company was halted by a federal appeals court, imposes a host of restrictions upon Microsoft. This includes forbidding the company to "retaliate against" customers who purchase software from its competitors. As part of the deal, Microsoft admitted no guilt or wrongdoing.
(The federal government's settlement with Microsoft was joined by nine of the 18 states suing Microsoft; the nine other states rejected the settlement and are continuing with litigation.)
Microsoft's view, company spokesman Jim Desler says, is that although such penalties are "tough," it's ultimately good for consumers to settle this suit.
And, he said, the public seems to agree. Microsoft's Freedom to Innovate Network site has been helping people file their comments to the government, and Desler said that the vast majority of people who copied Microsoft on their notes to the Justice Department were in favor of the proposed settlement. He didn't have an exact number, but there were "thousands" of pro-settlement comments, he said.
Dan Kegel, on the other hand, does have a rough number: 2,400. That's about how many people signed the Southern California software engineer's letter to the government, which basically says that the proposed settlement stinks.
Among Kegel's complaints about the deal: It "fails to prohibit anticompetitive license terms currently used by Microsoft," it "fails to prohibit intentional incompatibilities historically used by Microsoft," and it "contains misleading and overly narrow definitions and provisions."
Kegel said he posted his letter on his website to "make the whole issue more accessible to people," a goal at which he apparently was successful. Jeremy White, the CEO of Code Weavers -- a backer of the Wine Project, which aims to bring Windows apps to Linux -- was so inspired by Kegel's words that he decided to post his own "call to action" regarding the settlement.
That call to action made it onto Slashdot last week, a placement which brought a lot of attention to Kegel's and White's cause.
White said he's been blind-copied on nearly a thousand letters to the government, all of them in opposition to the settlement. Obviously, he's not had time to read all of them, but the letters he has read are "unique, polite, cogent -- this was not just a case of the Department of Justice receiving a thousand 'me too' e-mails," he said.
In addition to such grassroots efforts, many vested parties also took the opportunity provided by the Tunney Act to opine on the proposed settlement. For example, ProComp, a trade group composed of Microsoft's biggest competitors, held a press conference in Washington on Monday to announce that they'd marshaled the nation's top legal and economic minds to stand against the settlement.
Robert Bork, a conservative legal scholar famous for having been rejected for a Supreme Court berth, and Kenneth Starr, a conservative legal scholar famous for you-know-what, filed a hundred-page brief on behalf of ProComp in which they call into question virtually every aspect of the deal. The most significant part of their analysis is an affidavit from Kenneth Arrow, a Nobel-winning economist, who supported a 1995 consent decree between Microsoft and the government.
Arrow has changed his view for this one: "One of the objectives of the remedies should be to attempt to restore, to whatever extent possible, the possibility of competition in the market where the illegal monopoly was maintained," he writes in his affidavit. "The restrictions on Microsoft's behavior in the (proposed settlement) fall well short of this objective."
Now that the comment period has ended, it remains to be seen what Judge Colleen Kollar-Kotelly will do with the flood of pontification.
"It's all up to the judge," said Mark Ostrau, an antitrust attorney at Fenwick & West, a Palo Alto, California, law firm. "The settlement is obviously seen by many, many people as not sufficiently addressing the advice of the appeals court. She obviously will make a note of how many people weigh in on each side, but it's not a popularity contest, so an e-mail campaign is not going to make much of a difference."
But Kegel said he was optimistic that his petition drive will have an effect. "If we're lucky the judge will read it and go, 'You know, you're right,'" he said.
