REDMOND, Wash.--Last Monday started out as just another super day on the
otherworldly campus of Microsoft Corp. , and even as news of the Justice
Department's antitrust action against the company began to spread, the
cocky young managers who run the place barely broke stride.
"It's ridiculous," one opined, summing up the party line on government
allegations that Microsoft forced PC manufacturers to install its
Internet Explorer software in violation of an earlier antitrust
settlement. "The government is going to decide that we can't improve the
operating system?"
The consensus view that the action was a nonevent was belied by just
one glitch: The "demos" of Internet services being presented to a visitor
weren't working right, because the news had produced a traffic overload
on the company's internal network.
Arrogance, or at least a radical self-assurance, is a defining
characteristic of Microsoft, so I wasn't that surprised to hear
contemptuous dismissals of the Justice Department. The palpable sense of
prosperity and opportunity that washes across the campus--plush new
buildings everywhere, massive construction projects promising many
more--can make the U.S. government seem powerless by comparison.
What's remarkable, though, is that so many on Wall Street and
elsewhere in the technology community appear to share this view. The
Justice Department's move put nary a dent in Microsoft's stock price; a
chorus of analysts and other industry observers maintained that the
government would lose in court, or that its actions would have no impact
even if it won.
Considering how strong the government's case looks, this is a peculiar
stance. But it follows logically from the knee-jerk anti-government
ideology that permeates the technology world these days. And that
ideology, because it is in part self-fulfilling, may now do some serious
damage to some of its most vocal proponents.
Let's take the long view here for a moment. The first antitrust laws
were written more then a century ago, and since then government lawsuits
have broken up companies that were relatively more powerful than
Microsoft is today--Standard Oil and AT&T, to name just two.
Furthermore, the government has long been a central player in many
major industries. Lawmakers, administration officials, regulators and
judges routinely write detailed rules and make complicated decisions on
difficult, highly technical issues in industries ranging from
telecommunications and energy to aerospace, biotechnology and
transportation.
They don't always do it well. But the idea that computers and software
are so uniquely complex that federal judges can't possibly make
reasonable decisions about them--a common thread among those skeptical of
the Microsoft prosecution--is mostly a reflection of the self-importance
of the technology elite. My experience is that federal judges often are
very smart, and they're paid to study tough issues and make tough
decisions.
And the case at hand doesn't even look that hard. Microsoft agreed in
1995 not to require PC manufacturers that install its operating system
software to also take other Microsoft products, a practice known in
antitrust terms as "tying." Testimony made public by the Justice
Department shows that Microsoft forced Compaq and other vendors to accept
the Internet Explorer Web browser or face cancellation of their Windows
95 licenses.
Microsoft's defense is that IE is actually part of Windows 95. But for
the moment, at least, that's simply not true. IE was developed separately
from Windows, it's distributed separately from Windows, and there are
even versions of it for the Macintosh and Windows NT. If it walks like a
duck. . . .
The issue might get more complicated when Microsoft combines IE with
Windows in the next release of the operating system, scheduled for next
year. Maybe that would be an "integrated product" that's allowed under
the 1995 consent decree. But for now, at least, the Justice Department
seems to be on solid ground.
OK, the cynics say, Microsoft can simply make some small changes in
its licensing practices for the short term, which would delay but not
prevent it from annihilating Netscape Communications, its Web browser
competitor. What the heck, it could simply pay the fine as a cost of
doing business; $1 million a day isn't all that much when your cash
reserves are in the $10-billion range.
From a legal perspective, though, a finding that Microsoft had
violated the decree would be a serious matter, one that courts would
certainly consider in any subsequent proceeding. It could, for example,
lay the groundwork for a scenario in which the ability of rival companies
such as Netscape to interconnect their software with Microsoft operating
systems was supervised by a court, in order to keep Microsoft from giving
its own applications software an unfair advantage. Think of the
requirements regulators place on monopoly telephone or cable television
businesses.
The courts clearly have the power to do something like this, and while
it wouldn't be easy, it's not self-evident that they wouldn't be able to
do it competently.
Blinded by its formidable track record, Microsoft doesn't regard
anything like this as a possibility. And the anti-government zeitgeist,
which has drawn great strength from the Libertarian currents that
crisscross the technology industry, makes it difficult for others to see
the possibilities too--and makes it hard for the government to take
action.
Once people have gotten used to the idea that government is basically
venal, and certainly too inept to get involved with high tech, the
political risks of trust-busting in the software business become
significant.
The screaming irony in all this, of course, is that many of the people
who would most benefit from an aggressive government stance against
Microsoft are the very same folks whose rhetoric has made such a move
less likely. Sun Microsystems Chairman Scott McNealy, to cite just one
example, never misses a chance to take a swipe at the government, and
then wonders why it doesn't heed his backstage pleas to help him fend off
Microsoft.
Microsoft, of course, is now reaping a public opinion windfall from
the mood its enemies have helped to sow. How absurd for the government to
decide what can be part of a computer operating system! "This is
capitalism," as Bill Gates himself said last week. It's a favorite theme
of his, one which carries the subtext that anything that happens as a
result of market forces is, by definition, better than anything that
happens as a result of government intervention.
But part of capitalism, at least in this country, is that you're not
allowed to get so big and strong that you can snuff out competitors at
will. In many large, important cases, antitrust prosecutions have opened
the way to new eras of competition and innovation. Technophiles should
recognize that even government lawyers sometimes have a legitimate and
useful role to play.