Can you imagine if Lance Ito had been the judge?

By the time this column appears, the verdict itself (for the Microsoft trial, of course … have there been any others?) will be old news. The obligatory snap judgments will all have been printed, so you’ve read that (a) Judge Penfield Jackson was right and should throw the book at Microsoft; (b) he may have been right in theory, but technology has passed the whole issue by so the penalty should be light; (c) the whole trial should never have taken place because antitrust laws are bad for bidness.

The fact is that in the eyes of the law, Microsoft did harm and is guilty. The question now is finding a suitable punishment. What strikes me about this subject is the dreary sameness of the proposed solutions. Every one involves either breaking up the company, expropriating its intellectual property (read “Windows”), and/or supervising it closely while telling it to stop being so naughty.

Sadly, not one of these punishments stands up to the most basic of ethical tests: The punishment should fit the crime. The worst is breaking up the company, because in the wacky world of Wall Street a broken-up Microsoft would probably exceed a unified Microsoft in total market capitalization.

The goal of punishment is not to enrich the guilty.

Here’s one punishment that doesn’t enrich the guilty, and does fit Microsoft’s crime of abusing its Windows’ monopoly by bundling and dumping other, non-monopoly products, with it. What would be a suitable punishment? Prevent dumping, require the bundling of competing products, and break the monopoly.

Resolving the bundling and dumping issue is relatively easy: If Microsoft bundles a product, it must bundle the three leading competitors as well, and can only give away a product when at least one competitor already does so.

Breaking the monopoly is the more interesting challenge. Here’s one way: Require Microsoft to do what it should do anyway: Both publish and respect the operating system interface.

In other words, put the Windows API in the public domain. Not Windows itself, just its API. The court would enjoin Microsoft from either hiding any APIs or changing its specifications once published.

This would create near-instant competition in the form of Windows clones. Without hidden or changing APIs, clone-makers would be limited only by their ability to write code that works.

Enforcing this penalty is where the fun starts: The court should establish a bounty, paid by Microsoft’s own self to the first person or company uncovering a hidden or changed API. Make it $50 million or so per API, and I figure the average delay between infraction and detection would be measured in minutes.

Here’s the best part: Internet Explorer is part of the operating system, so its API, along with the API for the rest of Windows … all versions … will now be in the public domain. So will the APIs for any other applications Microsoft declares to be integral to the OS. Wham! Microsoft suddenly has a strong incentive to respect the distinction between OS and application.

That’s my solution. Even if you don’t like it, at least it’s different from the same old stuff.

If, on the other hand, you do like it and are pals with Judge Jackson, feel free to mention it to him. Or, mention it to a pal of a pal.

Six degrees of separation should get it there.