SCN: Microsoft

[Steve]

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Microsoft: Judgment Day  

by Eben Moglen

Eben Moglen, professor of law and legal history at Columbia 
University Law School, serves without fee as general counsel of the 
Free Software Foundation.


(The Nation)---Despite all the palaver, the denouement came quickly. 
Microsoft's decision to walk away from Judge Richard Posner's 
mediation efforts and to stake its future on overturning Judge 
Thomas Penfield Jackson's legal conclusions immediately resulted 
in the release of a judgment no one is going to overturn. Bill Gates, 
who as a child probably didn't play well with others, has elected to 
knock over all the blocks rather than share. Judge Jackson, for his 
part, has brought the Microsoft Era to a certain and devastating end.  

The fate of Microsoft is now sealed. Whatever remedy Judge 
Jackson may eventually decide to impose, Microsoft will be 
distracted, eroded and dismembered by the avalanche of private 
antitrust litigation that Judge Jackson's findings of fact and 
conclusions of law make possible. The most difficult burden for most 
antitrust plaintiffs is that of proving that their adversary possesses 
monopoly power in the relevant market; the second most difficult is 
that of proving that their adversary's actions constituted an attempt 
to achieve or maintain that monopoly power by forbidden means. 
Now any firm that believes that Microsoft has deprived it of fair 
opportunities to compete in the market for PC software need not 
prove either of those matters. Jackson's judgment means that the 
facts he found last November are unassailable by Microsoft in other 
litigation, the effect of what lawyers call "collateral estoppel." In 
order to recover antitrust damages, which under the Sherman 
Antitrust Act are triple their provable monetary losses, firms need 
only prove that Microsoft's conduct--as a proven monopolist that 
maintained its monopoly by illegal means--caused them monetary 
harm. Microsoft faces at least a decade of litigation with all the 
market participants it has threatened, knee-capped or destroyed. 
Gates's e-mail, that reservoir of documented commercial knavery 
unprecedented in the history of American antitrust litigation, will be 
in constant demand. The litigation will constrain Microsoft, opening 
opportunities for new competitors to emerge free of the hitherto 
omnipresent concern with Microsoft's probable response to each 
and every attempt to create new protocols and possibilities for the 
Net.  

By the evening of April 3, mere hours after release of the judgment, 
the nature of the Microsoft response was clear. The right of appeal, 
the company said, would result in Microsoft's exoneration. But that 
is unlikely--even if the case goes all the way to the Supreme Court. 
Judge Jackson's legal conclusions are painstakingly related to his 
factual findings, which no appellate court will disturb unless they are 
"clearly erroneous," a standard that is unlikely to be met in the mind 
of even the most skeptical appellate judge. Jackson's application of 
antitrust doctrine in his opinion, which accepted most but not all of 
the plaintiffs' legal theories, was deliberately orthodox, not 
experimental or innovative in any respect. And despite the pending 
appeal, the collateral-estoppel effect begins immediately, as will the 
flood of private litigation.  

Gates also declared that Jackson's opinion "turns on its head the 
reality that consumers know"--that Windows made computers more 
accessible to people throughout society. But antitrust is not only 
about consumers' welfare. As I wrote in these pages [see Moglen, 
"Antitrust and American Democracy," November 30, 1998], antitrust 
is also, and primarily, about protecting democracy from 
overconcentrations of private economic power. Gates's invocation of 
"what consumers know" distorts antitrust law to lose this point.  

How PCs work in the era of the Internet is an essentially political 
question. If Microsoft had wanted to give desktop icons to the 
Democratic and Republican parties but not to the Greens, no seller 
of a "Green PC," designed to appeal to the socially conscious buyer, 
could have added a Green Party icon without Microsoft's 
permission. Monopolization of the PC operating system by a single 
commercial entity determined uncounted political and social 
questions by default, in ways that consumers never had a chance to 
understand.  

This power to control the environment of the PC, in which more and 
more of us spend increasing proportions of our lives, conveys a 
power to shape, at a level so ubiquitous as to be barely noticeable 
to the average user, the nature of the public discourse. Which 
Internet medium can everyone get to with one click? Which points of 
view are considered appropriate for everyone's computer to 
represent? Throughout the era of the Microsoft monopoly, those 
decisions were made by a single private power, ceding it more 
undivided leverage over our collective symbolic environment than 
anyone in our society. For this reason, the destruction of that 
monopoly is far more important to the politics of our age than 
destruction of the petroleum or tobacco trusts was in the era of 
Theodore Roosevelt. Microsoft will no doubt argue that this increase 
in diversity will somehow destroy the benefit to consumers of an 
environment of widespread technical compatibility. This argument is 
a fallacy. Consumers will not have less good software to use once 
the Microsoft we know has perished. The culture of the Net will be in 
all ways healthier, and the politics of the information society will 
have lost its single most undemocratic feature.

Copyright 2000 The Nation Company, L.P.





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