Crime, but no punishment for Microsoft

Who's in charge of a system where the guilty set their own sentence?

You've been swindled. The conman is caught and brought to trial. Guilty, says the jury.

"Guilty, by Jove!" says the judge. "As this is by no means your first offence, I sentence you to... well, what would you like?"

"How about forcing me to buy a new suit?", says the criminal. "I've got the money. Business has been good. And if you could hurry up, I've got a lot on my plate."

As the swindled party, how would you feel?

Better get used to that feeling. This is what's playing out in the European Commission. Microsoft has been found guilty of abuse of its position - as it was in America, remember - on activities that have given millions of people a bad deal and crippled sectors of the IT industry. Yet it and the EC are negotiating away any hint of effective action.

Take Windows XP N, the version of XP without the Media Player. By allowing Microsoft to offer this at the same price as full XP, the EC has ensured that Microsoft will not only suffer no loss of revenue whatsoever - not a single penny - but can say "Look! No demand!" when everyone else ignores it. If that's a punishment, we're the Bolshoi Ballet.

And server interoperability, where Microsoft has also been found guilty of using its IP to illegally lock people out, is still being discussed. Why? What is wrong with saying that Microsoft has forfeited its right to that IP, such as it is, by egregious abuse, and it will immediately open it up or be hit with those seven figure daily fines?

Watching the conman shake hands with the judge, you may wonder what's going on between those two.

Let's look at Microsoft's modus operandi under pressure. We've seen it in America, where Microsoft said it would withdraw Windows from sale rather than comply with sanctions. We've seen it in Asia, where Steve Ballmer issued the most thinly veiled of threats to anyone thinking of open source - but he didn't mean it, of course. We've seen it in Europe, where Microsoft never threatened to pull research and development back to the US if software patents weren't supported and had no idea why anyone would think such a thing.

Again and again, Microsoft's response when all else is lost is: you touch us, we'll hurt you twice as bad. It's worked before. It would be out of character were this not part of its negotiations with the EC: how else to explain what's going on?

This is not justice. This is capitulating to a bully -- one, moreover, intent on increasing its control over the industry by all the technical, political and legal means it can muster.

We can still hurt Microsoft more than it can hurt us. Its bluff must be called, while we still have the option.