Winning by the Rules

THE rejection by a federal judge of an antitrust deal between mighty Microsoft Corporation and the US government last week seems to be in the public interest.

A simple review of Microsoft's behavior - its rapid domination of all aspects of current and future markets in software and computer applications - suggests a need to watch the giant for what Attorney General Janet Reno herself earlier described as ``illegal, monopolistic'' practices. Partners Microsoft and Intel control 85 percent of operating systems and 75 percent of microchips.

Yet whether Judge Stanley Sporkin's ruling will survive a Justice Department appeal is not certain.

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There is merit in the appeal. Judges should not use the Tunney Act, which requires them to review federal consent decrees, to run roughshod over and around cases brought before them - dictating the work and scope of every antitrust settlement.

But Judge Sporkin has not chosen just any case. The future of computer services and applications is of obvious national importance. Justice officials say Sporkin is out of bounds to ask them to expand their original case. They expected him to rubber stamp the deal. But, unless Sporkin is grandstanding (the details he raises suggest otherwise), the decision seems one of courage and judicial independence.

In a sense, Sporkin has already won - appeal or no appeal. Even if his ruling is overturned, Sporkin has publicized Microsoft's alleged effort to monopolize the market. In a way, the judge has adjusted for the rapid gains Microsoft made, illegally it seems, since the case began. These were made in areas the original case did not predict.

Moreover, all the attention puts an onus on Justice to investigate further. Last week Ms. Reno was asked repeatedly whether the substance of Sporkin's concerns would be taken up. By defending its more limited settlement, Justice looks like it is haggling over technicalities when there are larger issues at stake.

Justice officials cannot, by law, say if they are investigating an actual or potential Microsoft monopoly in computer operating systems, software, and other applications relating to the coming information superhighway. But they should see that antitrust laws are upheld.

This is difficult in a volatile market. Sporkin notes the problem of ``vaporware,'' still-undeveloped software that is announced in order to stop buyers from purchasing a competitor's product. The practice is widespread. Officials must ask: At what point in the development process is it illegal to announce software that may never pan out?

Healthy competition is a must. But winners must win by the rules.

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