Dave Kopel 柯大為研究論壇 > 反托拉斯的注目焦點
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。
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。
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。
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。
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。
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.
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？”
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。
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。
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。
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。
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
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
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.
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
more important parallel between the Standard Oil and
The oil business was
opening fields in states such as
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
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
The Aluminum Company of
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
A Real Monopolist
Besides Standard Oil, the
case most touted by advocates of the
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.
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
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
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
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
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
Later, a group of
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
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 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
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,
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
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
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.
And what if
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.
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
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
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.
Copyright 2015 David Kopel 柯大為