Is Windows an `essential facility?'

WASHINGTON -- Like the software suites that roll out of Microsoft's labs, the stakes in the government's antitrust case keep growing ever more complex.

Last December, the trust-busters were quite content when a judge ruled that Microsoft must untangle Windows 95 from its Internet browser tool. But that ruling was reversed. And Windows 95 gave way to Windows 98, which implants the browser eye so close to the operating brain that tearing them apart risks total blindness.

In filing a somewhat broader case last May, the antitrust police still focused mainly on Microsoft's bruising browser battle with Netscape. But when they used their vast subpoena powers to flush a cache of e-mails, they were shocked to find that when Microsoft dictates, the personal computer world trembles in fear and foreboding. So the prosecutors are now trying to move the goal posts anew. They remain shy about suggesting any real-world remedies until the final verdict is in. But with the trial entering its sixth week, it's clear that everything is on the table. That signal came when top litigator David Boies asked Netscape chief Jim Barksdale whether Microsoft Windows is an "essential facility" -- an item that is required by all competitors in a given field. "Sure," Barksdale replied. "They run the show. Our product cannot operate without it. We need access to key technologies and plans at the same time as Microsoft's in-house engineers." And since Microsoft is the "800-pound gorilla, you have to circle and sniff and be a good guy to get this stuff." Whisper "essential facility" in the ears of antitrust lawyers, and their cogs turn differently from those of the techno-nerds who cover the Microsoft trial. The attorneys harken to a 1990 brief (written by Kenneth Starr) that prompted the Supreme Court to rule (in a railroad case) that "a lawful monopolist has a duty to deal with a rival on terms (that allow) the rival a reasonable profit without regard to the effect on competition of a refusal to deal on such terms." Such arcana cuts no ice with Microsoft's minions. "We lack monopoly power, regardless of how the market is defined. Nor are there high barriers to market entry," says spokesman Mark Murray. Still, nowadays most computers come with Windows like most trains come with tracks. And if it makes sense to rivet a browser into the basic system, why not also (save for the antitrust laws) bolt on a powerful word processor, spreadsheet, database and a digital kitchen sink? These legal issues change if Windows becomes a regulated common carrier that treats all comers equally. But what incentive would Microsoft's Bill Gates then have to enhance a public utility? Gates might have more of an incentive if his empire were broken up into several competing "Baby Bills." But such a course would repeal the "virtuous circle" that a universal standard offers.The trouble is such a beneficial standard also creates a vicious circle for the losers in a fixed software game. Bottom line: A program that rights current wrongs, without spawning new wrongs, has yet to be written for Windows. Andrew J. Glass is a Washington-based columnist for Cox Newspapers. His e-mail address is alass

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