Bill, Bob, and Browsers: Why DOJ’s Case Against Microsoft is Flawed

On Point No. 1

While Microsoft has been pilloried by newspaper pundits, a trial court judge, and other alleged computer experts for not submitting to the federal government, the company’s defiant attitude is now being vindicated, as the government’s antitrust case against Microsoft has begun to show some cracks.

On February 2, a three-judge panel of the District of Columbia Court of Appeals handed the Department of Justice (DOJ) its first major defeat. The trial judge, with the support of the DOJ, had turned over almost all his responsibility for the Microsoft case to Lawrence Lessig, a Harvard Law School professor.

Vote of No Confidence. As Microsoft argued – and the appeals court apparently agreed – the Constitution requires that federal cases be tried by federal judges, not private citizens. The Court of Appeals could, theoretically, revise its decision at a later date, but the current suspension amounts to a strong and unanimous vote of no-confidence in trial judge Thomas Penfield Jackson by the Court of Appeals that supervises him.

DOJ’s problems, however, go much deeper than the Lessig affair. At its root, DOJ’s theory in this case is fundamentally flawed. Its supporters claim that the case against Microsoft is being brought so that Microsoft cannot stifle innovation. But only someone committed to a political philosophy of unconsciousness could believe that Microsoft is hampering innovation.

Innovating Like Mad. In fact, Microsoft is innovating like mad. Scientists in Redmond are working on speech recognition, intelligent agents, and other advanced user interface technologies that make modern operating systems look like stone knives and bear skins. Monopolies by definition don’t have to innovate at all. What’s going on here?

Microsoft is accused of using its dominance in operating systems to gain leverage in the browser market. But what exactly should the relationship between a browser and an operating system be? How can any group of lawyers make this decision for consumers? What deep insights do they have into the future of computing that entrepreneurs and computer scientists lack?

The answer, of course, is none. In fact, it is just the opposite: the attorneys at the Justice Department have an extremely short-term perspective. As a political body, that’s hardly surprising. Consider, for example, their focus on the browser market. It shows an inability to understand the rapidly changing face of the computer industry.

No one seems to remember that the browser market did not exist five years ago. It may not exist five years from now. Indeed, the browser market may already be on its deathbed, since browsers no longer have independent economic value; both Microsoft and Netscape are giving their browsers away. Since the very purpose of the DOJ’s case is to protect the browser “market” from Microsoft’s supposed monopoly power, the disappearance of the browser market removes the foundation of the DOJ’s case. Just a few months after the October launch of the DOJ’s antitrust prosecution, the computer software business has evolved so as to make the DOJ lawsuit obsolete.

Who Remembers Bob? The DOJ's theory that Microsoft can force computer users to accept inferior, non-innovative software is just plain wrong. Look at the fiasco of the company’s ill-fated operating system named “Bob,” designed for simpletons who couldn’t use normal Windows. Or the Microsoft Network — a Microsoft competitor to America Online which had the DOJ antitrust folks in a tizzy back in 1995.

At that time, the DOJ was worried about the on-line business, and almost no one foresaw that on-line companies would be swamped by the World Wide Web. Maybe the Web itself will be obsolete in a few years, replaced with something better. Or maybe not.

Maybe computers will soon all run software written in the widely hyped Java programming language, so that the type of hardware and operating system won’t matter. Or maybe not. We just don’t know. That’s what the discovery process of the marketplace is for. One thing is for certain: bright computer scientists and entrepreneurs will develop newer computing paradigms that will make Windows as obsolete as DOS is now.

The DOJ’s action against Microsoft isn’t about innovation. It’s about the fact that an exceptional individual living at the right time in history was able to become extraordinarily wealthy. He has also made others extraordinarily wealthy, and his company has a lot of economic power. This disturbs people. Successful companies like Microsoft will always be attractive political targets.

Encourage innovation, don’t punish it. The government antitrust lawyers should remember that antitrust laws are supposed to benefit consumers, not business rivals of a successful company. And antitrust laws are supposed to encourage innovation, not punish it. Smart people who create new products that benefit consumers deserve the financial rewards they earn.


Barry Fagin is a professor of computer science at the Air Force Academy in Colorado Springs, and Dave Kopel is a constitutional law attorney with the Independence Institute in Golden, Colorado. The opinions of the authors are theirs alone, and do not necessarily represent those of the organizations with which they are affiliated.