Is another MS antitrust case brewing in Japan?

It does rather look like somebody's getting their retaliation in early...


A strange article in the Asian edition of the Wall Street Journal today tries to make the case that "criticisms of Microsoft are no more warranted in Japan than in the US". The opinion piece is by Shigeki Kusunoki, currently at the School of Law at Kyoto University, but also an associate of the Ludwig von Mises Institute in Alabama, which is ardently pro-free market and a staunch supporter of Microsoft. It was more than two years ago that Microsoft was hauled up before the Japan Fair Trade Commission on antitrust charges. Microsoft capitulated and agreed to a "Cease and Desist Order" from the Japan FTC that referred to "the fact that the conduct of the company violated Section 19 of the Antimonopoly Act (Unfair Trade Practices)". Microsoft agreed to stop tying Word to Excel, and Outlook to Word and Excel, which had forced OEMs that wanted just Excel to license Word as well. There are several particularly curious things about the AWSJ article today, starting with why it was written at all, since there is nothing new apart from Kusunoki's opinion that there was no difference between Microsoft's behaviour and that of market rivals. But his opinion does not even stand up to the facts: the JFTC listed 16 of Microsoft's unfair trade practices in the 14 December 1998 Order. A recommendation to Microsoft Japan was made by the JFTC on 20 November 1998. With its usual PR aplomb, Microsoft embraced the recommendation and claimed a victory, as we reported at the time. The second strange issue abut the AWSJ article is that Kusunoki says that "When the Japanese FTC issues a 'warning', it is an indication that the agency suspects illegal practices but is not completely sure of its case; a 'recommendation', in contrast, is [a] declaration that some practices are certainly illegal". He then goes on to say that "For Microsoft, then, it was a relief that Japan's FTC issued a warning rather than [a] recommendation." Perhaps Kusunoki meant to put these around the other way, because the JFTC did issue a recommendation, and a subsequent Order that carried penalties if not observed. Kusunoki predictably concludes that "antitrust law itself violates the basic principles of a truly competitive market economy", but why should this partisan point be made now: is it a desire to exonerate Microsoft from its past mistakes before the release of Windows 2000, or is there a further case being considered in Japan? ® See also: How Microsoft put a spin on Japan 'innocent' verdict


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