Dave Kopel 柯大為研究論壇 > 反托拉斯的注目焦點

反托拉斯的注目焦点

微软事例后的愚蠢先例

 

作者：柯大為、約瑟夫比斯特

反托拉斯的对立双方美国微软和美国司法部保持的新的发展。8月17号，比尔盖茨公司放弃了推迟诉讼更多的努力直到最高法院考虑是否撤销诉讼。这对微软来说是个坏消息。因为下一步主要就是决定就赔偿所提出的问题。然后在9月6号DOJ宣布寻求解散微软的时间将很长。更奇怪的是它将停止微软已经非法捆绑个别项目的主张。但是其它指控仍然维持。很显然微软的敌人肯定会促使法院根据微软适应不断变化的环境的能力施加每一个可能的限制。特别是逐渐地缩小微软的个人计算机的重要性及以网络为基础的计算机发展。

微软推出Windows95已经六年了，操作系统自身与网络浏览器捆绑引发了1997年政府首次对微软提出的反托拉斯诉讼。另一方面，微软为其所谓的不当行为六年来没有受到任何处罚--当然除非你考虑费用及引起的司法部的斗争的负面影响。当windows 95初次问世时，微软的许多批评家和竞争者作了许多如果没有新的限制微软继续生意将会发生不愉快事情的预测。了解是否那些限制将会成事实已是过去的事。

采取更长的历史观点也是过去的经验：看看政府早期的反托拉斯冒险经历。看看他们是如何把微软讼案做比较的。结果是非常明显的---不是只看微软而是看整个反托拉斯法律。仔细看看政府的反对Standard Oil，美国Aluminum公司以及AT&T的突破性的行为,显然不是阻止伤害消费者---联邦反托拉斯立法规定的目标利用法律的激发力量。曲解这些案例是因为他们断言：如果不施以惩罚等措施微软会达到"窒息因特网"或破坏整个计算机业，接下来就是一连串可能被称之为反托拉斯注目焦点事例及历史的教训如何被误用到微软事例的分析。

油标准

1906年到1911年，反托拉斯权威起诉Standard Oil.这个案例最后是约憨D洛克菲勒公司被强行拆为几个小的商业。微软战争常常被和Standard Oil事例相比。这种类推是适当的，尽管企图不尽相同。

象微软，Standard Oil的行为被示众，而其它公司做却被认为是合法的。因为standard Oil 客户量如此之大，铁路给它特殊的折扣来换取能使铁路能有效运用他们自己的专线及铁路车的计划装运。Standard Oil的竞争者们强烈抗议这些折扣。（也叫"回扣"）铁路对其它石油公司严守秘密。

也象微软一样，Standard Oil也许伤害了它的竞争者，但它帮助了消费者。洛克菲勒的化学家从油中开发研究出三百种不同的副产品，销售程序也远比其它公司同行更有效,这样使其价格比他们的低，产品大部份售出。

Standard Oil在煤油价格为30分一加仑的时候开始做的，到1897年洛克菲勒的科学家和管理层把价格降到一加仑6分以下的时候，许多竞争力不强的公司纷纷破产---包括那些经营次级油，危险品使产品需求量大大下降的公司。Standard Oil 在石油上做法是同样的。它在仅十年内（1880-1890）洛克菲勒的合并使得石油价格下降了61%而产量却增长了393%，它最终把新泽西的Standard Oil建成一个由董事会领导下的18个公司组成的团体。

利用具有传奇般效率的资源，向工厂引进许多节省劳动力设备，销售系统上点面相应。而洛克菲勒付给员工的工资远高于市场水平，通过鼓励员工忠诚事业，并付之高工资，好的工作环境长远看是省钱的。在洛克菲勒通过降低价格提高质量彻底革新油系之前，高价格，鲸油及蜡烛的有限的供量使得除了富人以外其它人舍其都不能工作及夜晚娱乐。感谢Standard Oil,家庭可以仅用每小时一分钱就能就能照明，同时也拯救了鲸。

联邦政府1906年对Standard Oil提出诉讼，诉其违反谢尔曼反托拉斯法令。1909年公司被告有罪，1911年最高法院确认。具有讽刺意味的是，被法院称为"排斥其它"的Standard Oil通过它的合并，征收及生意联合而得以证实。没有人带来伤害消费者的证据，政府从不显示standard的具体行动，而是其所谓的目的是违法的。

裁决后数十年来，经济学家，法学者认为standard oil案例是标准的"价格掠杀"垄断者企图降低价格以踢出其它竞争者，然后再抬高价格。事实上，新进入操作系统，浏览器及应用软件市场的威协使得微软并没有行使其所谓的垄断权力。新的竞争因素使得standard oil 没有抬高价格也是一样。联邦地方法院及美国最高法院都发现Standard Oil的行为没有使得油价比采取其它行为所得出的价格更高。如果微软是个垄断者（这一点对任一个想用计算机的人是很重要的），适当的价格应该是900美元一本。微软没有标出那么高的价格，因为它知道一旦这样做了，客户就会涌向linux 或Macintosh.其它公司就会低于900美元价格的产品进入操作系统业。

微软和标准油还有一个类同：技术的变化使得标准油的决定随着特定的时间而陈旧。当然微软案例本身还没得到解决，但是我们会看到，不断更新的技术同样正改变着软件业的市场环境。

油业在堪萨斯洲、俄克拉荷马州，路易斯安那，加州特别是德克萨斯洲这些洛克菲勒没有投资的区域是一些开放的领域。所有这些领域都远离Standard Oil权力所在的俄亥俄州，宾夕法尼亚州及新泽西走廊。而且随着家用照明从煤油灯转为电能，燃油代替煤和木材作为主要的家庭加热燃料，国家煤油市场也在下滑。1898年煤油产量占精油及销售总产量的58%，燃油占15%。到1914年煤油降到25%，而燃油却上升到48%。洛克菲勒从煤油转换到汽油行动迟缓，1911年只占全国油产量的11%。标准油从没希望支配新的市场。整个能源业，新技术及新效率正造就一批与以往油业完全不同的新的更强的行业竞争者。那些竞争者远比洛克菲勒十年前所击败的更强大。

一些观察家指出，标准油被拆成数个小的地区公司后的数年里，小公司的股票价格上升导出这样一个思索：拆散微软可能会使微软股票的总价起到同样积极的效果。这是一个误区，几乎所有油公司的股票在那个时期都上升了不是因为破产的原因而是因为需求量的上升和技术的突破。拆散在油产品和油价上没有任何明显的影响。

政府反对Standard Oil的胜利在油业产生了长期的影响。一些看到其与微软案例类同的人很少去讨论它。败诉后公六年来，Standard Oil 戏剧性地改变了对华盛顿的态度，从敌对和避免转移到一个非常温和的相拥。公司长官AC贝德福德作为战争服务委员会的主席。该机构在第一次世界大战中提出动员国家为军队用油提供汽油和柴油供给。战后联邦控制从没有退出，把经济学家Dominick Armentano所说的"自由竞争市场的有效教科例子"变成以前一直难以获得的："政府批准的油协议"。这个转变的遗赠包括给消费者的高价及二十世纪七十年代的能源危机。最后在二十世纪八十个代，违规恢复了该行业一些竞争措施。

标准油案例给了关于竞争，革新及反托拉斯法律一些重要教训。我们看到了反托拉斯对高度革新公司所面临的困难，也目击了反托拉斯法的含糊，它允许诉讼以所谓的意向为基础而不是以具体行动为基础。我们看到了标准油最终怎样没能使消费者或投资者受益，而是为产业和政府间勾结铺路，带来了许多恶果，"进步的"反托拉斯支持者说：他们在斗争。

太好不能允许

1937年，美国政府对Aluminum 公司提出诉，声称其超过100条反托拉斯法律违例。政府败诉并重诉。问题最终在八年后的1945年被决定。这个案例是值得注意的，因为它说明一个公司太有效率，对消费者需求反应太快也会受到反托拉斯法律的起诉。

美国Aluminum公司（后来的Alcoa）是从查尔斯 霍尔1887年创立的匹兹堡缩版公司发展来的。查尔斯在铝锭铁售价高达每镑5美元的时代，发现并发明大量制铝技术。到反托拉斯诉讼的时候，铝锭价格降到每镑22分。

Alcoa从一开始就支配这一行业，它不但发明了几乎所有需要的工具及技术来降低生产成本提高生产铝的质量而且为新的金属开发市场起了主要作用。许多公司也进入用铝制造产品行业及收集，循环使用铝行业，没有人试图与制造原始的铝锭的Alcoa竞争。这不是因为Alcoa限制输入通路，如电和铝矾土这两个都是法院规定的可以向竞争者大量供应的。到诉讼的时候，Alcoa也没有拒绝其它人进入它所发明的制造技术业：那些发明在1910年终止了。Alcoa处于支配优势是因为如Armenttano所概述的情形"锭铁、钢用户及后来源于Alcoa的铝的生产制造业的客户一起享受着Alcoa无以伦比的卓越的服务，优惠的价格及丰厚的利润。"低级法院发现Alcoa的所有反托拉斯指控都是无辜的，甚至了解了Alcoa控制了原始铝锭铁市场的90%（另外10%是进口。地方法官Francis G. Caffey论述说谢尔曼法令禁止的行为是指垄断市场而不是宣布那些由于没有竞争对手而统领市场份额的公司的普通的商业行为为不合法。

法院同意法官Caffey的请求，政府没能出示Alcoa从事反竞争行为及高出常规价格的指控。但是法官知道著述大多数的联邦诉讼的坚持Alcoa事实上的垄断本身就是一个反托拉斯法律的违例。他写道："坚持它从不排除竞争者，但是我们可以想象到，没有比拥有每一个它开创的新机会及面对已经连入大团体的每一个新来者，利用经验、商业连接及人员精英优势更有效的排外了"

有人提到那些把夜里开快车的司机赶到路边，呆在小巷中间的警官，这种仔细的行为可能就是被醉酒的司机过度补偿的证据了。

没有发现具体违法行为证据，法院很难通过限制Alcoa进行商业行为来调整情势。在法官认识到公司卓越的效率及优质的客户服务后，解散公司似乎也不对头。相反，法院做出禁止公司向为二战军事需要所建的正在出售的政府铝厂出价。那些资产随后被卖给Reynolds Metal 和 Kaiser Aluminum.

1948年Alcoa和联邦政府要求纽约联邦地区法院重新考虑1945年的决定。Alcoa寻求解除定性其普通的商业行为为有罪的垄断警示。而政府想通过威逼Alcoa来剥夺它的一些资产。地区法院在1937年的一个不同的法官的指导下又一次发现政府的诉讼没有价值。这一次裁决：Alcoa不是一个垄断者。

真正的垄断者

除了标准油，最被微软诉讼提倡者吹捧的案例就是1982年被联邦法官Harold Greene监查的AT&T的解体，尽管两个都包含信息技术，但有重要的区别。

AT&T无疑是个垄断者，从一开始公司就疏通并赢得反竞争的政府保护。它强调它的市场份额部分是由于政府法律禁止其它公司进入任一部分电话服务市场，如本地或长途服务—甚至卖电话机及可能被连在电话线上的其它设备。"如果有政府控制和调节，那么就应该有政府保护公司服务于全社会，通过强劲的竞争取得有利可图的份额。"显然微软没有要求从它的竞争者的同样的保护，今天也没有这样的保护。

另一个区别：AT&T没有合并十年前呑并的当地电话操作公司。相反，微软通过内部发展一开始就扩大了。因为AT&T拥有资金和遍布全美国服务于消费者的员工，因此它可以相当容易地剥夺它的当地的电话公司。这些后来被组成7个“Baby Bells”来供应地区电话服务。微软超集中的资金及相对少地需求具体地理区域的人力（销售除外）会被这样一个法律命令产生负面影响。

导致AT&T解体的解决也把公司从1956年反托拉斯同意的法令也就是禁止其进入或竞争于非受控制的商业如数字处理中解放出来。作为交换AT&T自动同意解除。AT&T的解体是在双方愿意下成立的一个步骤。解除已长期在公众效用模式控制下的一部分经济。相反，微软的解体会表现在这部分经济政府大量增加的干预。

不管从哪个角度，AT&T的解体都远不算是功的。协议的一部分就是创造一个竞争者在长途市场上自由介绍新产品。随着AT&T进入电缆，无线及其它数字传输领域和全球放大的商业竞争，这看上去已经相当成功。（当然AT&T不是总能成功竞争，如它的含巨大股份的痛苦挣扎中的电缆调制解调器系统Excite@Home全年大部分时间都在破产的边缘摇摆）。

大多数过去的AT—T留下作为当地Bell公司被禁止生产设备或设计新的电话产品。原理是防止他们用当地电话服务的利润来资助新的商业。相反，这种安排创造了革新缓慢或使竞争者进入受控制的市场的当地电话垄断。Lucent从解体中组成的技术公司本身就被卷入金融及法律麻烦中。

法官Greene对电话公司的监控从1982年持续到1996年，激怒的国会最终解除了通过的法令。在干涉期间，数百个应用软件（通常被想卖或为新技术申请许可的当地Bell公司放弃）在法官 Greene的记录里搁置平均长达四年。

据说反托拉斯有时比正规规定更高，因为反托拉斯不要求持续的公司经济的持续政府忽略。但是AT&T案例表明反托拉斯法律的执行可以产生许多或更多的干涉。象标准油案例，AT&T案例揭示了政府长期控制扩展的模式，首先控制价格，避免不健康的竞争，然后支持或反对合并或收购，最终支配是否产品允许革新。

微软恐慌

那么微软呢？如果攻击这个公司比部分成功解散AT&T做的更好的话---更不用说对标准油及Alcoa完全不公平的战争了---那么人们很难想到诉讼的原理会随着时间而存活，但它没有存活。关于微软如果不停止，可怕的世界会到来的强烈警告发出后五年多来，公司的批评家们几乎每一轮都被证明是错误的。

在推出Windows 95前一年，微软宣布开始自己被叫作微软网络MSN的在线服务。MSN的图标会出现在每一个windows作为操作系统的计算机屏幕上。这被认为是赢得客户的巨大优势。那时，微软在线服务商业的市场份额几乎是零。AOL迅速跑到联邦政府抱怨微软计划是反竞争的。技术记者Steven Levy在周报的一篇文章中警告说因为微软“有一天美元帐单会被Bill美元代替，每一个在线交易的价格可以穿过微软膨胀的保险箱。”

在上面的杂志上，Gary Reback, Brian Arthur,和其它投入的微软批评家写道：很难想象在一个开放的社会这样一个具有多种信息来源的公司可以夺取足够的信息传输控制以组成对自由社会基础的威胁。商业周报也焦虑微软可能调节其操作系统优势为角落市场如网络 ，家庭软件和在线服务。简而言之，它可能会大量控制信息高速公路。

后来，一群微软竞争者---- Netscape, Oracle, Sun, and MCI催促政府行为以使微软不会得到因特网的控制权。声称压制的微软会确保信息技术和因特网的易到达和支付力。Netscape的Jim Clark就微软的Web浏览器，因特网探测器发出了同样的警告。“如果微软拥有浏览器和操作系统，将没有Yahoo,没有Infoseek,没有Excite 只有比尔站在门口指出他要去的地方。微软将会是唯一的入口。”Sun的Scott McNealy发愁道：“微软不把你放在每一个计算机打开的屏幕的购物中心你怎么去竞争？”

俄亥俄州律师Betty Montgomery警告如果微软不停止，它将会把信息高速公路变为“收费公路”竞争电子市场国会警告微软会夺取在线服务客户产品如保险，银行，房地产和地方娱乐。一年后，一个叫ProComp的倡议团（被建为促进限制微软，并被微软公司对手资助）警告“微软极可能成为数字市场的唯一通路”

在windows98和通路（喜爱链接单很快失败的版本）问世的时候同样的警告发出。直到2000年四月AOL宣布选择Netscape为AOL浏览器后，司法部警告微软会“增加其因特网探测器的所有权的功能以加强因特网呈上坡势的数百万客户的控制”

政府没有废除MSN，也没有压制通路，更没有宣布捆绑为非法。当反托拉斯案例的压力可能强迫微软停止执行与其生意伙伴的合同条款，使公司领导无心制造新的好的产品的时候，就微软貌似巨大的市场能量看，那些挫折完全是不足为道的。自从DOJ提出诉讼微软的可怕的力量数年来一直在增长。那么发生了什么？

Windows 95和完整的MSN图标问世，MSN继续变成微软历史上最昂贵的失败。网络内容是微弱的，界面是可怕的。安装程序冗长易错。同时 ，AOL使界面做得更好并通过签约磁盘和向在Windows 桌面屏幕上包含AOL图标的制造商付费不断占领市场。

微软网络不再作为在线服务存在。它已被与Yahoo或Excite入口相同的自由网络入口代替。微软因特网服务提供商现在为5百万客户服务。AOL有三千五百万客户。

微软的恐慌表明反托拉斯行动不需要保持竞争，即使MSN在每一个Windows 95计算机的桌面。NSN是次级产品，所以它失败了。同样的事件证明技术力量的变化削除初始垄断。因特网的发展使在线服务不象以前那么重要了。

尽管NSN的失败，但允许微软竞争于为客户制造大量利益的在线服务市场。当MSN被推出的时候，AOL一月使用20小时收费为54.20美元。MSN同样的时间量收费为19.95美元。部分由于MSN所产生的竞争，AOL最终把价格调到19.95美元和24.95美元之间的无限量使用，大多数其它在线服务和因特网服务提供商纷纷效法。降价和提高使用的同样故事在实际上每一个预测到微软进入而减少竞争和伤害消费者的每一个地区都缕缕重复。

轻快的开始后，微软卖掉了它极为吹捧的作为当地娱乐导向的边路站点。它的房地产站点HomeAdvisor.com, trails Homestore.com和正被强化的象许多其它电子商务站点重新装配它的经营策略。微软Expedia旅行站点变成另一个公司，现在属于美国网络而不属于微软。微软的汽车网络站点做得非常好，但很难在它的市场形成阻塞。

但是微软既不支配甚至也不试图与各种在线商业竞争的事实并没有使Chicken Littles停止警告：微软的计划在后来十月份推出的新的XP操作系统将占领数字商业。

为什么不垄断？

一个简单的结论是微软拥有Windows因特网探测器不足以使之控制在线商业。微软与传统的实业公司，Web站点，其它入口拥有数百万用户的在线服务及专业电子商务公司竞争。既使微软提供了大多数网络冲浪的初始点，网络的其它部分只是点击。

更根本的是，网络浏览器可以被用来控制因特网内容的思想很难在一开始就是可信的。人们也许会相信SONY如果在美国卖掉40%或甚至95%新电视装置它会控制电视项目。象一个电视，一个浏览器只是到达内容的工具。通过清晰度影响电视或浏览器进入内容的是次级产品。它不会有可行的经济前景也极不可能变成市场领袖。

1997年，微软执行官Nathan Myhrvold说公司想得到一个用微软软件的每一个因特网交易的抽头（一种赌注份额）。但这是不现实的。因特网的抽头只有在理论上可行，在真实世界是不可行的。斯坦福经济学家Robert Hall做出了如果微软做出这个尝试会发生什么的如下假想：Yahoo会与便宜的小的公司厂商联盟，提供以Yahoo为基础的整个系统的国家因特网服务提供商默认Yahoo入口 ，还提供用如Netscape或Opera的公开的标准浏览器整个因特网的进入。硬件象同绳电话或电缆盒会因为太便宜而被放弃，所有的利润将来自于广告，月费和交易费。

比尔盖茨希望他的公司赚银行使用微软软件做在线银行的钱。由于银行与微软产生的沟渠而通过世界宽网提供银行服务使其希望落空。

那么网络服务器呢----用于网络冲浪因特网内容的计算机？一个公司可以调节浏览器进入服务器市场控制的巨大市场份额吗？如果可能，一个商业试图做了同样的事。这个公司就是在早期控制网络的Netscape.但是Netscape只提供给开展者可怜的支持而且产品价格相当高---这样就为微软及其它竞争者创造了机会。今天统领网络服务器软件的是Apache,一个以Unix为基础的免费项目，它占63%的服务器，微软IIS居第二，占20%.Netscape企业占7%.

即使微软取得服务器操作系统市场的高份额，它很可能因为进入屏障太低而没有什么市场力量。服务器软件包括操作系统支持有限的功能。软件仅提供所有操作系统大多数复杂性来源的最简单的用户界面。

那么如果微软是世界上仅有的浏览器公司那会怎么样呢？那么它会推出微软功能的浏览器，通过使IE与每一个其它公司网络服务器不兼容而迫使除微软以外的所有人购买微软服务器软件吗？司法部2000年春天作出这样的断言，尽管法院从未听到有关证据。根据这个断言，因特网探测器包括Kereborios所有的扩展（一个防止所有黑客进入网络站点的安全项目）与微软网络服务器工作最有效。

这样一个策略最实际的障碍是因特网探测器的用户被没有跟上微软项目的网络站点切除。这至少可以说成是一个主要的竞争弱点 。因特网探测器的老的版本和市场上现存的其它浏览器版本仍会取得进入那些站点。不需要采用微软服务器软件就能到达网络站点的新的浏览器既成市场会出现。主要的网络站点特别是入口会让路于这样的浏览器以确保他们的站点可以到达。AOL，Netscape的拥有者会处在一个极好的位置如果微软改变内网探测器使之与AOL和其它站点不兼容。尽管微软提供浏览器和服务软件的重要作用，它浏览器市场的持有决不可能强大到使之从服务器边获取重大价值。个人用户在反对微软不会起一个主要作用。股票市场拥有数百亿的几个主要的网络站点可以靠自己做这事。

无知的精英

因为因特网仍在迅速发展，记者和政治家很容易就成为所制造恐慌的掠家。很难对较熟悉的产品如汽车发起这样的战斗。今天没有人相信如果General Motors打开它自己的安装配置链，GM会获得整个美国运输。但在因特网上，那些不能从TCP堆里区分一个软件狗的雄性端的常常都是那些愚蠢的窒息主张的弱智。

仅一个公司是个垄断的断言就使微软竞争者从那些应该更清楚了解的记者和决策家那搭乘免费车。例如Jim Barksdale后来的Netscape的首席执行官1998年向国会说的：“我注意到这样一个事实：盖茨先生在回答是否是垄断公司时谈到产品怎样短暂，我们大家都明白。但那并不打消是否它是一个垄断公司。即使从现在开始它走开六个月，今天它仍然是个垄断公司”Barksdale的伪善的断言是令人惊异的---因为Netscape的浏览器的市场份额远比微软网络浏览器或操作系统的市场份额高得多。

散布谣言的人显然并没有受到信誉上的任何损失。警告因为微软网络，现在我们所有的人可能都在使用“Bill美元”的作家Steven Levy还和他的周报读者共享他的理论。2000年六月，他写了一个封面故事建议比尔盖茨向政府的大多数要求让步。同样地，Sun的主席也为法官Thomas Penfield Jackson的作为“保护因特网技术免于成为任何一个公司的个人席位”的工具的微软解体命令而喝彩。

仔细看看反托拉斯最引人注目的焦点---标准油，Alcoa,甚至AT&T案例---揭示了一个独裁模式，默视消费者和司法部的政治干涉。微软案例相当简短的历史暴露了同样的不公正及一连串被微软批评家所支持的令人为难的夸大其词和谎言。今天微软的网络，通路和边道在哪？所有这些都消失了变成无关的或被竞争和改变的技术彻底改变。因特网仍然是免费的和分散的，并有好的理由：微软不能调节在几个市场控制因特网进入或内容的优势。声称否则会卖掉新闻杂志或扰乱国会议员。

柯大為 中心學會數字經濟中心主任
約瑟夫博斯特  中心學會會長。
這篇文章摘自『微軟後的反托拉斯：數位時代的反托拉斯的退化』
版權©2001所有者：中心學院和柯大為

 

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Antitrust's Greatest Hits
The foolish precedents behind the Microsoft case

By David B. Kopel and Joseph Bast

New developments in the antitrust face-off between Microsoft and the U.S. Department of Justice keep on coming. On August 17, Bill Gates' company failed in its efforts to delay any more action in the case until the Supreme Court decides whether to consider Microsoft's request to dismiss the suit. That was bad news for the company, since the next major step would be to decide what "remedies" will be imposed. Then, on September 6, the DOJ announced that it would no longer seek a breakup of the company -- and, more surprisingly, that it would drop its claim that Microsoft had illegally "bundled" separate programs. But the other charges remain, and it is clear that Microsoft's enemies will surely urge the court to impose every possible restriction on the company's ability to adapt to changing conditions -- particularly the diminishing importance of the personal computer and the growth of Web-based computing.

It has been six years since Microsoft introduced Windows 95, the operating system that, by "bundling" itself with a Web browser, prompted the government's first antitrust suit against the company in 1997. Put another way, six years have gone by without Microsoft suffering any penalty for its supposed misconduct -- unless, of course, you count the expenses and negative publicity it has incurred fighting the Justice Department. When Windows 95 debuted, Microsoft's critics and competitors made many predictions of the unpleasant things that would happen if the company kept doing business without new restraints. It's past time to see whether those predictions have come true.

It is also past time to take an even longer historical perspective: to look at the government's earlier adventures in antitrust and see how they compare with the Microsoft case. The results are very telling -- not just with regard to Microsoft, but to antitrust law in general. Indeed, when one looks closely at the ground-breaking government actions taken against Standard Oil, the Aluminum Company of America, and AT&T, it becomes clear that something other than preventing harm to consumers -- the stated goal of federal antitrust legislation -- is the motivating force behind applying the law. Misinterpretation of these cases lies behind the claim that Microsoft, unless punished, crippled, or otherwise injured, will achieve a "chokehold on the Internet" or somehow undermine the entire computer industry.

What follows is a medley of what might be called antitrust's greatest hits and an analysis of how the lessons of history are being misapplied to the Microsoft case.

The Oil Standard

From 1906 to 1911, antitrust authorities prosecuted Standard Oil, a case that culminated with John D. Rockefeller's company being forcibly broken up into several smaller businesses. The Microsoft wars have often been compared to the Standard Oil case, and the analogy is apt -- though not in the way it is usually intended.

Like Microsoft, Standard Oil was pilloried for practices considered legitimate when used by other companies. Since Standard Oil was such a high-volume customer, railroads gave it special discounts in exchange for planning shipments in ways that enabled railroads to use their lines and railcars most efficiently. Standard Oil's competitors complained bitterly about these discounts (called "rebates"), which the railroads kept secret from other oil companies.

Also like Microsoft, Standard Oil may have harmed its competitors, but it helped its consumers. Rockefeller's chemists developed 300 different byproducts from oil and created production and distribution processes far more efficient than those of other companies, allowing it to underprice them and to buy many of them out.

Standard Oil began in 1870, when kerosene cost 30 cents a gallon. By 1897, Rockefeller's scientists and managers had driven the price to under 6 cents per gallon, and many of his less-efficient competitors were out of business -- including companies whose inferior grades of kerosene were prone to explosion and whose dangerous wares had depressed the demand for the product. Standard Oil did the same for petroleum: In a single decade, from 1880 to 1890, Rockefeller's consolidations helped drive petroleum prices down 61 percent while increasing output 393 percent. He eventually built Standard Oil of New Jersey into a trust composed of 18 companies operating under a single board of directors.

Standard Oil Standard Oil used resources with legendary efficiency, introducing many new labor-saving devices to its factories and locating sophisticated facilities at key points in its distribution system. Yet Rockefeller paid wages well above the market level, believing that high wages and good working conditions would save money in the long run by averting strikes and by encouraging loyalty among employees. Before Standard Oil revolutionized oil derivatives by lowering prices and improving quality, the high prices and limited supplies of whale oil and candles prevented all but the wealthy from being able to work or entertain after dark. Thanks to Standard Oil, families could illuminate their homes for just one cent per hour. And he saved the whales.

The federal government filed suit against Standard Oil in 1906 for violating the Sherman Antitrust Act, and in 1909, the company was found guilty; the Supreme Court affirmed the finding in 1911. Standard Oil, claimed the courts, evinced an "intent and purpose to exclude others" -- demonstrated, ironically, by its many mergers, acquisitions, and business alliances. No one brought forward evidence of consumer harm, and the government never showed that Standard's specific actions, as opposed to its alleged intent, were illegal.

For several decades following the verdict, economists and legal scholars viewed the Standard Oil case as a classic example of "predatory pricing" -- a monopolist's attempt to underprice its competitors out of the market so it could raise its prices later. In fact, just as the threat of new entry into the operating system, browser, and applications markets has kept Microsoft from ever exercising its supposed "monopoly power," so did new sources of competition keep Standard Oil from raising its prices. Neither the federal district court nor the U.S. Supreme Court found that Standard Oil's practices made kerosene prices higher than they otherwise would have been. If Microsoft Windows actually were a monopoly (that is, essential for anyone who wants to use a computer), the proper price would be about $900 a copy. Microsoft doesn't price this high because it knows that if it does, consumers will flock to Linux and Macintosh, and other companies would enter the operating system business, with products much cheaper than $900.

There's one more important parallel between the Standard Oil and Microsoft cases: Technological change made the Standard Oil decision obsolete by the time it was resolved. Of course, the Microsoft case hasn't resolved itself yet, but as we'll see, changing technologies are changing market conditions in the software world as well.

The oil business was opening fields in states such as Kan-sas, Oklahoma, Louisiana, California, and especially Texas, where Rockefeller had failed to invest. All those fields were far away from the Ohio/Pennsylvania/New Jersey corridor that was the base of Standard Oil's power. Also, the national kerosene market had declined, as home lighting shifted from kerosene lamps to coal-generated electricity and as fuel oil replaced coal and wood as the major fuel for home heating. In 1899, kerosene had accounted for 58 percent of all refined petroleum sales, and fuel oil for 15 percent. By 1914, kerosene had plunged to 25 percent, and fuel oil had risen to 48 percent.

Rockefeller was slow to switch from kerosene to gasoline, and with only 11 percent of the nation's oil production in 1911, Standard Oil could never hope to dominate the new market. Throughout the energy business, new technologies and new efficiencies were creating new and stronger competitors from industries previously distinct from the oil industry. Those competitors were far more powerful than the kerosene companies Rockefeller had defeated decades before.

Some observers have noted that in the years after Standard Oil was broken into smaller regional companies, the stock prices of those smaller companies rose, leading to speculation that breaking up Microsoft might have a similar positive effect on the total value of Microsoft stock. This is a misreading. Nearly all oil companies' stock went up in that period, not because of the breakup but because of rising demand and technological breakthroughs. Nor did the breakup have any discernible impact on oil production or oil prices.

The government's victory against Standard Oil had a long-term effect on the oil industry that is seldom discussed by those who see parallels with the Microsoft case. Only six years after losing the antitrust case, Standard Oil dramatically changed its attitude toward Washington, moving from hostility or avoidance to a very warm embrace. Company chief A.C. Bedford served as chairman of the War Services Committee, an agency created to mobilize the nation's supplies of gasoline and diesel fuel for military use during World War I. After the war, federal control never retreated, transforming what economist Dominick Armentano has called "a virtual textbook example of a free and competitive market" into "what had previously been unobtainable: a governmentally sanctioned cartel in oil." The legacies of this transformation include higher prices for consumers and the "energy crisis" of the 1970s. Deregulation in the 1980s finally restored some measure of competition to the industry.

The Standard Oil case teaches some important lessons about competition, innovation, and antitrust law. We see the difficulty antitrust has dealing with highly innovative companies. We witness the vagueness of antitrust law, which allows prosecution on the basis of alleged intent rather than specific actions. And we see how the Standard Oil case ultimately failed to benefit consumers or investors. Instead, it laid the groundwork for collusion between industry and government, bringing about many of the very ills the "progressive" proponents of antitrust said they were fighting.

 Too Good to Be Allowed

In 1937, the U.S. government filed suit against the Aluminum Company of America, alleging over 100 violations of antitrust law. The government lost the case and appealed. The matter was finally decided eight years later, in 1945. This case is remarkable because it held that a company could be prosecuted under antitrust laws for being too efficient and responding too quickly to consumer demand.

The Aluminum Company of America (later Alcoa) grew out of the Pittsburgh Reduction Co., founded in 1887 by Charles Hall, the man who discovered and patented the technology for producing commercial quantities of aluminum. At the time, aluminum ingots sold for $5 a pound. By the time of the antitrust suit, the price was down to 22 cents per pound.

Alcoa dominated its industry from the start. It not only invented nearly all the tools and techniques required to lower production costs and raise the quality of the aluminum it produced, but also played a major role in creating markets for the new metal. While many companies entered the business of fabricating products out of aluminum and collecting and recycling used aluminum, none attempted to compete with Alcoa by producing virgin aluminum ingots. This was not because Alcoa restricted access to inputs such as electricity or aluminum bauxite, both of which the courts ruled were available to potential competitors in ample supply. Nor, by the time of the suit, did Alcoa deny others access to the manufacturing techniques it had patented: Those patents had expired in 1910. Alcoa was dominant because, as Armentano summarizes the situation, "users of ingot or sheet, and ultimately the consumers of fabricated products made from aluminum by Alcoa, were being served at degrees of excellence, prices, and profit rates that no one could equal or exceed."

The lower court found Alcoa innocent of all counts of anti-competitive behavior, even while acknowledging that it controlled 90 percent of the market for virgin aluminum ingot. (The other 10 percent was imports.) District Court Judge Francis G. Caffey reasoned that the Sherman Act forbade activity aimed at monopolizing markets, but did not outlaw the common business practices of companies that held dominant market shares due simply to the absence of competitors.

The appeals court agreed with Judge Caffey that the government had failed to show that Alcoa engaged in anti-competitive behavior or charged higher prices than it should. But Judge Learned Hand, writing for the majority of the federal Court of Appeals, held that Alcoa's de facto monopoly was itself a violation of antitrust law. Alcoa, he wrote, "insists that it never excluded competitors; but we can think of no more effective exclusion than progressively to embrace each new opportunity as it opened, and to face every newcomer with new capacity already geared into a great organization, having the advantage of experience, trade connection and the elite of personnel."

One is reminded of those police officers who sometimes pull over drivers late at night for moving at exactly the speed limit and staying in the middle of their lanes, on the grounds that this kind of careful conduct may be evidence of overcompensation by a drunken driver.

Having found no evidence of specific actions that were illegal, the court could hardly remedy the situation by restricting Alcoa's ongoing business practices. Nor, since the judges recognized the firm's outstanding efficiency and service to consumers, did it seem right to break up the company. Instead, the court settled for prohibiting the company from bidding for government aluminum plants which had been built to meet World War II military needs, and which were being sold off. Those assets were subsequently sold to Reynolds Metal and Kaiser Aluminum.

In 1948, Alcoa and the federal government asked the federal District Court for New York to reconsider the 1945 decision. Alcoa sought to be relieved of the scarlet M-for-monopoly that effectively criminalized its common business practices; the government, on the other hand, wanted to force Alcoa to divest some of its holdings. The district court, under the direction of a different judge than in 1937, once again found the government's case without merit, and this time ruled that Alcoa was not a monopolist.

 A Real Monopolist

Besides Standard Oil, the case most touted by advocates of the Microsoft prosecution is the 1982 breakup of AT&T, which was overseen by federal judge Harold Greene. But while both cases involve information technology, there are important differences.

AT&T was indisputably a monopoly. From the beginning, the company lobbied for, and won, government protection against competition. It maintained its market share thanks partly to an array of legal prohibitions on other companies entering any part of the telephone services market, be it local or long-distance service -- or even selling telephones and other equipment that could be attached to a phone line. The company's first president stated its strategy succinctly: "If there is to be state control and regulation, there should also be state protection to a corporation striving to serve the whole community...from aggressive competition which covers only that part which is profitable." Obviously, Microsoft has not called for similar protections from its competitors, nor is it today similarly protected.

Another difference: The AT&T divestiture undid acquisitions from decades before, in which AT&T had swallowed local phone operating companies. Microsoft, by contrast, has expanded primarily through internal growth. Because AT&T had capital and employees dispersed all over the United States to serve its customers, it could therefore divest itself relatively easily of the local telephone companies. These were then organized into seven "Baby Bells" to provide regional phone service. Microsoft, with its capital far more centralized and with much less need to have people "on the ground" in geographically defined areas (except for sales), would be far more adversely affected by such a legal order.

The settlement that led to the AT&T breakup also liberated the company from a 1956 antitrust consent decree that prevented it from entering and competing in non-regulated businesses, such as data processing. In exchange, AT&T voluntarily acceded to divestiture. Thus, the AT&T breakup was a consensual step toward deregulating a part of the economy that had long been regulated under the public utility model. A Microsoft breakup, by contrast, would represent a major increase in the government's intervention in this part of the economy.

At any rate, the AT&T breakup has been far from a complete success. One part of the agreement created a competitor in the long-distance market, free to introduce new technologies. This seems to have been relatively successful, with AT&T moving into cable, wireless, and other data transmission arenas and competing with a variety of businesses around the globe. (Of course, AT&T doesn't always compete successfully, as demonstrated by its huge stake in the floundering cable-modem system Excite@Home, which has been teetering on the verge of bankruptcy for most of this year.)

Much of the old AT&T was left behind as the local Bell companies, which were forbidden to manufacture telephone equipment or design new telephone products. The theory was that keeping these Baby Bells from equipment manufacture and design would prevent them from using their profits from local telephone service to subsidize new businesses. Instead, the arrangement created local phone monopolies that have been slow to innovate or to let competitors into their captive markets. Lucent, the technology company formed out of the breakup, is itself mired in financial and legal troubles.

Judge Greene's supervision of the telephone companies continued from 1982 until 1996, when an exasperated Congress finally dissolved the consent decree. In the intervening period, hundreds of applications for waivers -- usually by local Bell companies wanting to sell or license a new technology -- sat on Judge Greene's docket for an average of four years.

Antitrust is sometimes said to be superior to formal regulation, in that antitrust does not require continuing government oversight of the company's business. But the AT&T case demonstrates that enforcement of antitrust laws can generate as much or more intervention. Like the Standard Oil case, the AT&T case reveals a pattern of government control expanding over time, first to manage prices and avoid "unhealthy" competition, then approving and disapproving of mergers and acquisitions, and ultimately ruling on whether to allow innovations in products and services.

The Microsoft Panic

And Microsoft? If the assault on this company is to do more good than the partly successful breakup of AT&T -- let alone the utterly unjustified wars on Standard Oil and Alcoa -- then one would at the very least expect the suit's rationale to survive the passing of time. But it hasn't. More than half a decade after the first loud warnings about the awful world to come if Microsoft isn't stopped, the company's critics have been proven wrong at almost every turn.

In the year before the introduction of Windows 95, Microsoft announced it would start its own online service, to be called Microsoft Network (MSN). An icon for MSN would appear on the screen of every computer that shipped with Windows as an operating system; this was expected to be a huge advantage for gaining customers. At the time, Microsoft had a market share of exactly zero in the online services business. AOL promptly ran to the federal government to complain that Microsoft's plan was "anti-competitive." Technology journalist Steven Levy wrote an article in Newsweek warning that because of MSN, "One day, dollar bills may be replaced with Bill Dollars, and a piece of every online transaction could go through Microsoft's bulging coffers."

In Upside magazine, Gary Reback, Brian Arthur, and other devoted Microsoft critics wrote, "It is difficult to imagine that in an open society such as this one with multiple information sources, a single company could seize sufficient control of information transmission so as to constitute a threat to the underpinnings of free society. But such a scenario is a realistic (and perhaps probable) outcome." Business Week worried that Microsoft might "leverage" its operating system dominance to "corner" markets such as "networking, home software, and online services. In short, it might largely take control of the information superhighway."

Later, a group of Microsoft's competitors -- Netscape, Oracle, Sun, and MCI -- urged government action so that Microsoft would not "gain control of the Internet," arguing that suppressing Microsoft would "ensure the accessibility and affordability of information technology and the Internet." Netscape's Jim Clark offered a similar warning regarding Microsoft's Web browser, Internet Explorer: "If Microsoft owns the browser as well as the operating system, there will be no Yahoo!, no Infoseek, no Excite, just Bill standing at the gate, pointing out where he wants to go. Microsoft will be the one and only 'portal'." Sun's Scott McNealy fretted: "How are you going to compete if Microsoft won't put you on the Microsoft Shopping Center -- which will be the opening screen of everyone's computer?"

Ohio Attorney General Betty Montgomery warned that unless Microsoft was stopped, it would turn the "information superhighway" into a "toll road." In 1997, the misnamed Council for a Competitive Electronic Marketplace warned that with Windows, Microsoft would be able to capture customers for online services for products such as insurance, banking, real estate, and local entertainment. A year later, an advocacy group called ProComp (which had been created to promote restrictions on Microsoft and is funded by Microsoft's business rivals) warned of "the very real potential that Microsoft will become virtually the sole gateway to the digital marketplace."

Similar warnings were made when Windows 98 made its debut with Channels (a soon-to-fail version of a "favorite links" list). As late as April 2000, after AOL announced it would choose Netscape as the AOL browser, the Department of Justice was warning that Microsoft might "add proprietary features to its Internet Explorer browser to tighten its control of the main on-ramp to the Internet for millions of consumers."

The government did not abolish MSN, nor did it suppress Channels, nor did it outlaw "bundling." While the pressure of the antitrust case may have forced Microsoft to stop enforcing some terms in contracts with some of its business partners, and may have distracted the company's leaders from producing new and better products, those setbacks were surely minor in light of Microsoft's supposedly immense market power. Microsoft's sinister power has had years to grow since the DOJ filed its suit. So what happened?

Windows 95 made its debut with the MSN icon intact, and MSN went on to become the most expensive failure in Microsoft's history. The network's content was weak, the interface was horrible, and the installation routine was lengthy and error-prone. Meanwhile, AOL made its interface better and better, and marketed itself incessantly through free sign-up disks and by paying computer manufacturers to include an AOL icon on the Windows desktop screen.

Microsoft Network no longer exists as an online service. It has been replaced with a free Web portal, similar to the Yahoo! or Excite portals. Microsoft's Internet service provider currently serves about 5 million customers. AOL has 35 million.

The fuss over Microsoft Network shows that antitrust action was not needed to maintain competition, even though MSN was on every desktop of every Windows 95 computer. MSN was an inferior product, so it failed. The same events illustrate the power of technological change to eliminate incipient monopolies. The growth of the Internet made online services much less important than they used to be.

Despite MSN's failure, however, allowing Microsoft to compete in the market for online services produced enormous benefits for consumers. When MSN was introduced, AOL was charging $54.20 for 20 hours of use a month. MSN was priced at $19.95 for that same amount of time. Thanks in part to the competition created by MSN, AOL eventually dropped its price to between $19.95 and $24.95 for unlimited use, and most other online services and Internet service providers followed suit. The same story of falling prices and rising usage has been repeated in virtually every area where Microsoft's entry was predicted to reduce competition and harm consumers.

After a brisk start, Microsoft sold its much-touted Sidewalk sites, which operated as local entertainment guides. Its real estate site, HomeAdvisor.com, trails Homestore.com and is being forced, like many other e-commerce sites, to reconfigure its business strategy. The Microsoft Expedia travel site was spun off into another company, and is now owned by USA Networks, not Microsoft. Microsoft's automobile Web site is doing pretty well, but hardly has a chokehold on its market.

But the fact that Microsoft neither dominates nor even still attempts to compete in various online businesses has not stopped Chicken Littles from warning that Microsoft's new XP operating system -- scheduled for release in late October -- will take over digital commerce.

Why No Monopoly?

One easy conclusion is that Microsoft's ownership of Windows and Internet Explorer is not enough to give it control of online commerce. Microsoft competes with traditional brick-and-mortar companies as well as Web sites, with other portals and online services that have millions of users, and with companies specializing in e-commerce. Even though Microsoft supplies the starting point for much Web surfing, the rest of the Net is just a click away.

More fundamentally, the idea that a Web browser could be used to control Internet content was hardly believable in the first place. One might as well believe that Sony would be able to control television programming if it sold 40 percent -- or even 95 percent -- of new television sets in the United States. A browser, like a television, is just a tool for reaching content. A television or a browser that interferes with access to content is, by definition, an inferior product. It is not going to have a viable economic future, much less become a market leader.

In 1997, Microsoft executive Nathan Myhrvold said the company wanted to get a "vig" (a bookie's share) of every Internet transaction that used Microsoft software. But this was unrealistic. The Internet vig was possible only in theory, not in the real world. Stanford economist Robert Hall offers the following scenario for what would happen if Microsoft made the attempt: "Yahoo! will ally with a manufacturer of cheap small computers and a national Internet service provider to produce an entire system that is Yahoo!-branded, defaults to the Yahoo! portal, but also provides access to the entire Internet with an open standard browser such as Netscape or Opera. The hardware would be cheap enough to be given away, like cellular phones or cable boxes, and all of the profit will be made from advertising, monthly fees, and transaction fees."

Bill Gates had hoped his company could at least make money from banks which used Microsoft software for online banking. That too failed, as banks ditched Microsoft networking software, and instead offered banking services via the World Wide Web.

What about Web servers -- the computers that serve up the Internet's content to Web surfers? Could a company leverage a huge market share for its browsers into control of the market for servers? As it happens, one business tried to do precisely this. The company was Netscape, during its period of early dominance on the Web. But Netscape offered miserable support for developers and priced its product extremely high -- thus creating an opportunity for Microsoft and other competitors. Today, the leading Web server software is Apache, a Unix-based program, which is free, and which is on 63 percent of servers. Microsoft's IIS is second, with 20 percent. Netscape's Enterprise has 7 percent.

Even if Microsoft achieves a high share in the server operating system market, it is likely to have little market power, because barriers to entry are low. Server software, including the operating system, carries out a limited range of functions. The software provides only the simplest user interface, which is the source of much of the complexity in full operating systems.

And what if Microsoft were the only browser company in the world? Could it then introduce a browser with Microsoft-only features and force the rest of the world to buy Microsoft server software, by making IE incompatible with every other company's Web server? An allegation to this effect was made in the spring of 2000 by the Department of Justice, although the court never heard evidence on the subject. According to the allegation, Internet Explorer included proprietary extensions of Kereboros (a security program that prevents hackers from entering a Web site) that work best with the Microsoft Web server.

The first practical obstacle to such a strategy is that the users of Internet Explorer would be cut off from any Web site that did not fall in line with Microsoft's program. This would be a major competitive defect, to say the least. Older versions of Internet Explorer and any remaining copies of other browsers on the market would still be able to gain access to those sites. An immediate market would emerge for new browsers able to reach Web sites that did not adopt Microsoft's server software. Major Web sites, particularly portals, would give away such browsers to ensure their sites could be reached. AOL, as owner of Netscape, would be in a particularly good position if Microsoft altered Inter-net Explorer to make it incompatible with AOL and other Web sites. Microsoft's hold on the browser market could never be strong enough to let it extract significant value from the server side, despite Microsoft's important roles in providing both a browser and server software. Individual users would not have to play a major role in opposing Microsoft. A few key Web sites -- valued in the stock market at tens of billions of dollars -- could do it on their own.

Ignorant Elites

Because the Internet is still developing so rapidly, reporters and politicians are easy prey for manufactured panics. It would be much more difficult to create such a fright over a more familiar product, such as automobiles. Nobody would believe today that if General Motors opened its own chain of filling stations, GM would take over all American transportation. But on the Internet, folks who can't tell the male end of a dongle from a TCP stack are often suckers for silly claims about chokeholds.

Merely asserting that a company is a "monopolist" has allowed many of Microsoft's competitors to get a free ride from reporters and policymakers who ought to know better. For example, Jim Barksdale, then-CEO of Netscape, said this to Congress in 1998: "I was struck by the fact, in the response of Mr. Gates to the question about whether or not he was a monopoly, he talked about how short-lived the products were, and we all understand that. That doesn't negate whether or not it's a monopoly though. Even if it went away six months from now, it is a monopoly today." The hypocrisy of Barksdale's claim is astonishing -- since Netscape's browser at its height held a larger market share than Microsoft ever had for Web browsers or for operating systems.

The scaremongers appear not to have suffered any loss in credibility. Steven Levy, the writer who warned that we'd all be using "Bill Dollars" by now because of the Microsoft Network, is still sharing his expertise with Newsweek's readers. In June 2000 he penned a cover story advising Bill Gates to capitulate to most of the government's demands. Similarly, Sun's Chairman Scott McNealy applauded Judge Thomas Penfield Jackson's Microsoft breakup order as a tool to "protect Internet technologies from becoming the proprietary presence of any one company."

A close look at antitrust's greatest hits -- the cases of Standard Oil, Alcoa, and even AT&T -- reveals a pattern of arbitrary rulings, disregard for consumers, and political interference with the administration of justice. The much shorter history of the Microsoft case has exposed the same injustices, along with the series of embarrassing exaggerations and falsehoods espoused by Microsoft's critics. Where are Microsoft Network, Channels, and Sidewalk today? All have disappeared, become irrelevant, or been radically transformed by competition and changing technology. The Internet remains free and decentralized, and for good reasons: Microsoft cannot "leverage" its dominance in a few markets into control over Internet access or content. To claim otherwise might sell newsmagazines or flummox congressmen -- but it is hardly realistic.

David B. Kopel is the director of the Center on the Digital Economy at the Heartland Institute. Joseph Bast is president of the Heartland Institute. This article is adapted from Antitrust After Microsoft: The Obsolescence of Antitrust in the Digital Era. Copyright ©2001 by The Heartland Institute and David B. Kopel.