Dave Kopel 柯大為研究論壇 > 微軟屈服

微软屈服

[摘自: 20021月自由21-24这个在线版本更改了印刷版本的一些错误。]

作者:柯大為Dave Kopel

在与比尔克林顿的联邦反托拉斯检查官的战斗中,微软学会了一些关于怎样真正在美国经商的可怕的教训。政府和微软在112日的解决方案中都放弃了一些,但真正的输家是计算机用户和美国司法。

去年秋天,微软和美国司法部宣布了一个被提议的反托拉斯微软案例的解决。这个解决等于微软的实质上的胜利,长期的案例结果对微软,消费者,经济和自由是有害的。

当然微软离开比媒体主流相信案例的大多数发展阶段的可能性更好。联邦法官的微软解体请求因哥伦比亚区的法院2001年夏天上诉而无效。新的解决方案不包括司法部后来的法院上诉裁决所热衷寻求的许多条款。如限制微软放弃作为Windows 操作系统一部分的Window媒体播放器的长期存在的习惯。解决也不包括司法部1997年反托拉斯先驱案例所寻求的多数过分条款如对Windows操作系统任何变化的先前的抑制。微软没有同意司法部开始要求的不向微软提出反托拉斯诉讼的代价:微软分配带有每一个windows副本的Netscape浏览器。

然而微软的麻烦没有结束,当司法部和微软做出经仔细组织后的解决时,司法部说服加入原微软反托拉斯案例的18个州有9个拒绝决定。联邦区法官Colleen Kollar-Kotelly开设了一个为时三个月的提议解决的公众论坛。法院听证订于349个反抗的州是否会放弃解决,或根据国家商业法执行他们自己的案例还不确定。

但是微软应该感谢2002年各州给微软带来许多麻烦。2000年春天,微软和司法部在仲裁Richard Posner(倍受尊敬的联邦受理上诉的法官)引领下达成了远比现在提议解决更严重的提议解决。微软和司法部准备签字;但9个州拒绝并要求更多。处理失败了。这样州参预联邦反托拉斯案例使司法部丧失了一个主要的DOJ胜利的实质内容。作为自愿解决,决不会被联邦法院上诉放弃的胜利。现在DOJ策略再一次被不现实的州要求阻挠也许微软案例会警告将来的DOJ诉讼人坚持在联邦法院提出诉讼而不是集合一些非举足轻重的有寄生要求的州首席律师。

而且,即使所有的州要求最终被解除,DOJ解决留下了法官Jackson完整的事实发现—---包括微软是个垄断者的发现。这些发现是明白地错误,因为他们为了排除Apple定义了“相关的市场”,因为他们错误地断定Linux不是Windows的严重竞争对手,因为他们以完全错误的数据预述Windows的市场份额(如Cato学会的Bob Levy所详述的)

即使这样“发现”就是个发现。联邦法院上诉证实了初审法院的微软是个垄断的发现,许多原告律师可以依靠政府案例的决定性的发现带来私人的反托拉斯反对微软。尽管原告会很难证明微软所做的这一切的后果使消费者受到伤害,但这些案例会叨扰微软数年。

关于解决本身的条款,一些条款相当于政府干涉解决普通的商业争执。如微软在初审失败并上诉有关的初始屏幕的问题----屏幕是用户打开新的计算机会首先看到的。微软坚持计算机制造商(OEM---原设备制造商)不用特制的屏幕代替Windows初始屏幕。OEM可以任意加许多图标,但CEM不能除去微软包括的图标。

因为版权问题,微软完全有权坚持微软的显示不能被改变。但初审和受理上诉的法院发现与微软版权不相关。

初次导入后,改变初始屏幕当然只是几个鼠标点击。OEM可以总是包含图标(和支持文书工作)来告诉用户“点击这儿开始你的通路体验。”  从那OEM可以随意定制,指导用户进入OEM首选的因特网服务提供者或OEM想带你去的任何地方。

如果从初始导入就操纵(而不是从初次导入后第一个屏幕开始)是真的如此重要的话,OEM可能因为每个Windows副本而要付微软几美元并购买控制权。但司法部干涉的影响无需OEM支付给了OEM一些微软财产权。

  在我们认为人可以打800号来接通电话公司的社会,似乎也有可能人能跟着菜单指令而改变正打开的屏幕。

另一个规定是要求微软在公开的折扣时间收取OEM均衡比率费。这会深远地影响 微软实践。如,IMB帮助微软开发了Windows3.1,因此从微软得到了购买Windows3.1特殊折扣。Compaq帮助开发了Windows95而得到了那个产品的特价。因为他们提供了特惠的折扣,这些折扣被政府称为非法的反托拉斯违例。实际上,对微软来说,开发一个新的操作系统能发现一个可以帮助设计并除错的新操作系统的主要计算机厂商是可喜的一步。这使操作系统更强大,出错更少,为每个用户更好检测。特殊的折扣是对公司所做的特殊工作的一个合理奖励。在反托拉斯审讯时,IBM抱怨它没有得到CompaqWindows 95上得到的同样的待遇。-----尽管IBM没有对Windows 95任何帮助,只是在后期IBM发现IBM自己的OS/2不太受欢迎时才决定许可Window95.

但是根据解决条款,微软被禁止向那些帮助开发更好产品的公司提供特殊的已说好了的折扣。必然的结果将会是更多的错误,很少测试并低劣于那些没有反托拉斯的反竞争命令的地方生产的软件。

但微软反托拉斯案例真正伤害几乎和解决条款无关。甚至案例最大的破坏性影响是事例怎样把计算机商业从自豪的不受政府约束的商业变成参预类同于大多数美国其它大公司所做的与政府的违法关系。要理解这个问题,让我们看看反托拉斯法律和微软安全的政治术语。

主要执行者的问题长期来被认为是理解政府干涉经济的关键之一。政府应该是它主人(人民)的代理。但是政府的利益可能不会总和人民的利益一样。所以当政府要求作为消费者的代理时,政府事实上正提高它自己的利益(更多的政府权力)而不是消费者的利益(好产品低价格)。

正如经济学家Bruce M.Benson和其它作家所描述的,反托拉斯只是象任何其它规则形式一样的公众精选问题的主题。反托拉斯是通过在此之后的诉讼执行的,而不是预想的规则制定。它不改变公众选择动机。

 的确反托拉斯是结构良好完全与抗击政府经济偏爱的正常政治程序隔绝。规则的大部分形式一贯伤害一些有益于别人的公司;尽管反托拉斯目标对准一组正移动的受害人-----有时候是大公司,有时候是小公司。一些行业也许数十年都不会被注意,而另一些却不间断地被追逐。不象联邦对空中或汽车旅行的价格设定,它对消费者的伤害是不直接的,或是感觉不到的。再说,反托拉斯拥有智能团中不乏一些政府控制经济的普通批评家的学者。

Milton Friedman曾经也是那些学者之一,因为从理论经济学的观点讲,正确地使用反托拉斯会使消费者受益-----如阻止固定价格的阴谋。然而1998Friedman注意到许多他的经济学家同样断言:反托拉斯法律“会变成掠夺特殊利益”。现在,谁在促进微软案例?是它们的竞争者Sun微小系统和Netscape.在经济原理的抽象世界里,“垄断是个问题”Friedman承认,就是那个原因,反托拉斯曾在经济学家中享有普遍的支持。但是在现实生活中,垄断“往往是短暂的,在大多数情况下是短期的。垄断可以持久的仅有的路就是有政府的支持。”1999Friedman详述道:“从目睹所发生的一切中,我看到反托拉斯不是促进竞争,而是正在做着相反的事,因为象许多政府行为一样,他们往往被他们应该管理和控制的人民接管所以,随着时间的推移,我渐渐得出结论:”反托拉斯弊端远大于利,如果我们根本没有它,如果我们可以摆脱它我们会更好。

  在国家财富期刊上,Adam Smith争辩道“消费是所有产品的唯一目标和意图,生产者的利益应该考虑,只有如此才需要提高消费者的利益。”微软案例随同平常的支持消费者的修辞----尽管政府没能证明消费者被伤害。当然,政府从没有拿出一例描述消费者伤害的证据。相反,微软操作系统,电子制表软件,文字处理,因特网浏览器及其它软件产品市场的成功事实上是减价和提高质量的结果。消费者受益,但竞争者遭受了很大损失。正是这些痛苦的竞争者是司法部反微软案例的起源。

微软与其它任一个相比是一个比较好的市场企业家 ,但公司没有认识到它的竞争者是一些政治企业家。联邦贸易委员会(1900s早期)及司法部(始于1993年)没有通过阅读计算机产业新闻杂志而注意到微软的利益。却是通过多个微软的竞争者长期的,持续的,资金充足的游说活动开始注意到微软。这个团体的缩写是NOISENetscape, Oracle, IBM, Sun,及其它)

在“其它”中最突出的公司是Novell,一个设在犹他州倍受微软痛苦的公司。Novell的小型办公网络商业被兼容于Windows95的小型办公网络侵蚀,改良为Windows98.Novell在它还占据主要的文字处理时买了Wordperfect,几年后因数亿美元的损失卖掉了它。WordperfectWord代替是因为Novell糟糕的产品管理。犹他州也是参议员Orrin Hatch1995-2001年参议院司法委员会主席)的故乡。他大肆宣扬反微软听证帮助DOJ反托拉斯起诉铺设了政治基础。

AOL甚至在获得Netscape前就是一个重要的NOISE成员,当Netscape真诚关注因特网浏览器----作为对Netscape领袖Jim Barksdale自称的“上帝给的一个90%市场份额”的一个威胁----NOISE联合体的其它成员没有。他们对因特网浏览器极为关注正如Lyndon Johnson关注在东京海湾事件中北越南人是否是真正的侵略者。所谓的侵略只是对长期憎恨的敌人发起战争的借口而已。

NOISE的其它呢?IBM对商业和消费者出售,而OracleSun只对商业出售。这三个公司的模式是高价格和低量。和微软的模式正好相反。象微软,Sun整合网络浏览器成Sun Solaris操作系统。直到1993年,如果你想买Sun Solaris操作系统,你也要买微处理器,存储,系统软件和Sun的中间设备,或只兼容Sun服务器的类型。过去IBM向它的客户提供有限的选择,尽管竞争造成较宽松的行为

没有人向使商业消费者从一个来源购买一切的模式挑战。直到微软1990s早期进入市场。微软的Windows NT服务器操作系统作为独立运行的产品卖出,兼容于许多不同的计算机。NT软件使用也很简单,有一个设计良好的简单的图形界面,比其它占优势的公司产品更便宜。许多不同的厂商做运行Windows NT机器的计算机硬件。比起Sun生产的所有的Solaris,它的价格相当便宜。有了Windows NT作为平台,象Dell Gateway这样低成本的公司(在知道许多关于Windows而不知道Unix时)可以开始把销售从较贵的机器中移开。

突然,NOISE公司发现微软Windows3.1,后来的Windows95Windows 98(全部是为桌面计算机市场,而不是服务器市场)感染上所有反托拉斯违例。附带地,这些消费者产品也正好是提供微软进入服务器软件商业的资源的现金支援。这些消费者产品也使用广受欢迎的绘图界面使许多上班簇热望他们的公司也采用Windows NT.----他们可以使用和他们熟悉的家庭电脑相同的界面。

NOISE公司真的相信他们荒谬的对微软“窒息”因特网的警告吗?微软型的竞争真的不同于NOISE的吗?事实上,微软在浏览器战役中使用的每一个武器(如放弃产品,利于网站的特别交易)Netscape也都使用过。

 微软因特网探测器--(司法部反托拉斯诉讼最初目标)是从Spyglass浏览器发展来的,微软从Spyglass浏览器制造者Doug Colbeth那里购买了许可。但是在微软开始免费放弃浏览器(打败Netscape)时,Colbeth的许可合同变得无价值。司法部把Colbeth作为反托拉斯案例可能的证人。但是Colbeth拒绝了,他解释说微软的行为和每一个其它因特网公司一样,总裁们关于微软的抱怨是伪善的:NetscapeBarksdale[Sun]McnNealy,他们都做了盖茨所做的。那儿没有我不会做的事。

很奇怪美国人听从OracleLarry Ellison的生意规范。Ellison雇用侦探公司(曾因发掘指控比尔克林顿性违规的女人的污垢而闻名)试图从为微软辩护的智囊团窃取废物。但愿理查德尼克松能创造性地宣布:水门入室行窃显示了他的公开录音和公开的揭发的承诺。最近Ellison试图说服布什政府创建国家身份卡(它会运行Oracle的数据软件)

不只是Oracle,但整个NOISE联合的游说成功地曲解了法律,利用政府强制的势力来反对一个除了强劲的竞争攻势和削减NOISE利润额没有任何错误的公司。NOISE宣传家们还自以为是地声明他们热爱“竞争”来增加伤害渲染。就象Torquemanda开始每一个调查时宣布他支持宗教的自由和容忍一样。

司法部提出反托拉斯案例向美国每一个计算机制造者证明:NOISE政治策略是让政府伤害其竞争对手的一条好路。

可悲的是微软也学到了政治教训。微软曾经是一个自豪的非因政治而生存的公司。甚至在FTC1990s早期的调查后(对微软和IBM共同开发下一个WindowsOS/2的协议),在司法部调查的达于极点的1995年同意法令后,和1997-98同意法令诉讼(微软的解释被维护)后,微软金融游说华盛顿是微不足道的。1995年比尔盖茨天真地宣布政治问题不在“我们的雷达屏幕上”。1994年公司有一个说客在华盛顿。根据共和国David McIntosh,甚至在1997年末微软“在Hill是零出席”.

 令人难以相信的是,微软的政治不参预被华盛顿说成是“傲慢的”的代词。特区,建立---好象特区政治阶级是一个有组织的犯罪团体,每一个在公司都要向它支付保护。

19985月反托拉斯诉讼作为公司的珍珠港,公司最终开始了那些有相同规模的公司在严重的政治打击下所做的游说和捐献活动。1995年,微软PAC花了16000美元(在版权和编密码问题上),但现在微软是美国最大的社团政治捐赠人之一。微软在华盛顿给自己购买了主要的游说席位。微软开始向两个主要的党派投掷支票,向不同的候选人投掷硬钞。

微软迟到的正当防卫鞭策了微软的竞争者们(那些数年前就进入势力购买游戏的人)让其受雇的顾问焦虑“那么多的微软钱在系统流通对非政治化的法律危险是真实的”。这就象Hirohito抱怨的:美国潜艇正恐吓使太平洋军事化。

微软的敌人在2000年早期操纵酿造了关于微软和它的联盟反对档案预算增加而游说DOJ反托拉斯公司的小型丑闻。如果微软游说在道义上是错误的,那么滥用的IRS执行的受害者们反对更高IRS预算的游说也是错误的。因为被BATF牺牲去游说反对BATF预算的枪枝商店增加,并且分店Davidian的幸存者们游说反对支付美国联邦调查局“人质解救队”更多的钱。事实上微软的错误不是它在2000年游说,而是它在早先几年没有为减少或消除滥用的联邦区或局的预算而游说。当一群狼正撕咬着进入人的帐篷的时候,对捕食者控制的兴趣是合法的,但是是迟来的。

考虑到9/11后新的国家状态,至少在可预见的将来,微软可能会免受政治掠夺者的攻击。反托拉斯局对羡慕政治攻击成功的美国商业好象不太感兴趣。然而人们可以想象到信息经济会更强壮,其它的经济可能今天也会强壮如果公司的成功完全是靠使消费者满意而不是使用或拒绝使用反托拉斯法律作为反商业竞争的政治工具。

 

大卫科伯是独立学会研究主任和中心学会数字经济中心主任。他是微软后的反托拉斯作者。(芝加哥,中心学会,2001

 

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[From Liberty, Jan. 2002, pp. 21-24. This online edition corrects some errors in the print edition.]

 Microsoft Capitulates

by David Kopel

In its battle with Bill Clinton's trustbusters, Microsoft learned some frightening lessons about how business really works in America. The government and Microsoft both gave up a little in the Nov. 2 settlement, but the real losers were computer users and justice in America

Last fall, Microsoft and the United States Department of Justice announced a proposed settlement of the antitrust case against Microsoft. While the settlement amounts to a substantial victory for Microsoft, the long-term result of the case is harmful for Microsoft, consumers, the economy, and freedom.

Certainly Microsoft came away much better off than the mainstream media believed possible at most stages of the case. Federal trial judge Thomas Penfield Jackson’s order to break up Microsoft was voided by the District of Columbia Court of Appeals in the summer of 2001. The new settlement does not include many of the terms ardently sought by the Department of Justice subsequent to the Court of Appeals ruling – such as restricting Microsoft’s long-standing practice of giving away the Windows Media Player as part of the Windows operating system. Nor does the settlement include the most egregious terms which had been sought by the Department of Justice in the 1997 case which was the forerunner to the antitrust case -- such as a prior restraint on any changes in the Windows operating system. And Microsoft did not agree to what the Department of Justice had originally demanded as the price for not bringing an antitrust case against Microsoft: a requirement that Microsoft distribute the Netscape browser with every copy of Windows.

Yet Microsoft’s troubles are not necessarily over. While the Department of Justice and Microsoft worked out a carefully-structured settlement, nine of the eighteen states which the Department of Justice had convinced to join the original Microsoft antitrust case refused to settle. Federal District Judge Judge Colleen Kollar-Kotelly opened a three-month comment period for public comment on the proposed settlement.  A court hearing is scheduled for March 4. Whether the nine recalcitrant states will be able to undo the settlement, or to carry on with their own cases under state business laws, is uncertain.

However much trouble the states cause Microsoft in 2002, Microsoft does owe the states a large debt of gratitude. In the spring of 2000, Microsoft and the Department of Justice had been led by mediator Richard Posner (a highly respected federal appellate judge) to a proposed settlement that was far more severe than the current proposed settlement. Microsoft and the Department of Justice were ready to sign; but the states refused, and demanded much, much more. The deal fell apart. Thus, state participation in the federal antitrust case deprived the Department of Justice of what would have been a major DOJ victory, a victory which, as a voluntary settlement, never could have been undone by a federal court of appeals. Now, the DOJ’s strategy is again being thwarted by unrealistic state demands. Perhaps the Microsoft case will be a caution for future DOJ litigators to stick to bringing their own cases in federal court, rather than assembling a peanut gallery of state attorneys general with parasitic claims.

Moreover, even if all the state claims were eventually dismissed, the DOJ settlement leaves intact trial judge Jackson’s findings of fact – including the finding that Microsoft is a monopoly. These findings are plainly wrong, since they define the "relevant market" so as to exclude Apple, since they falsely conclude that Linux is not a serious competitor to Windows, and since they are premised on indisputably incorrect data about Windows’ share of the market (as Bob Levy of the Cato Institute has detailed).

Even so, a "finding" is a finding. The federal court of appeals having affirmed the trial court’s finding that Microsoft is a monopoly, scores of plaintiffs attorneys will be able to bring private antitrust suits against Microsoft, relying on the conclusive findings from the government’s case. These cases will natter at Microsoft for years, although the plaintiffs will have a very difficult time showing that consumers suffered as a result of anything Microsoft did.

Regarding the terms of the settlement itself, some terms amount to the government intervening to settle ordinary commercial disputes. For example, one issue on which Microsoft decisively lost at trial and on appeal related to the initial start up screens—the screen that the consumer would see the very first time he turned on a new computer. Microsoft insisted that computer manufacturers ("OEMs" – Original Equipment Manufacturers) not replace the Windows startup screen with a customized screen. OEMs could add as many icons as they wanted, but OEMs could not remove the icons that Microsoft included.

As a matter of copyright law, Microsoft was plainly within its rights to insist that its software display not be altered. The trial and appellate courts, however, found Microsoft’s copyright irrelevant.

After the initial boot, changing the start-up screen once and for all takes only a few mouse clicks. OEMs could always include icons (along with supporting paperwork), to tell a user to "Click here to start your Gateway experience." From there, the OEM could customize at will, steering the user into the OEM’s preferred Internet Service Provider, or wherever the OEM wanted to steer.

If steering from initial boot (rather than from the first screen after the initial boot) were really all that important, OEMs could have paid Microsoft a few dollars extra for each copy of Windows, and bought steering rights. Nothing prevented the OEMs and Microsoft from coming to mutually satisfactory terms. The effect of Department of Justice intervention, however, was to give the OEMs some of Microsoft’s property rights, without the OEMs having to pay for it.

 Another provision requires Microsoft to charge OEMs uniform rates, with a published discount schedule. This will significantly affect Microsoft practices. For example, IBM helped Microsoft develop Windows 3.1, and accordingly received a special discount from Microsoft for purchases of Windows 3.1. Compaq helped develop Windows 95, and received a special price for that product. These discounts were alleged by the government to be illegal antitrust violations, because they gave preferential discounts. Actually, it was a sound move for Microsoft, when developing a new operating system, to find a major computer manufacturer who could help design and debug the new operating system. This made the operating system more robust, less buggy, and better-tested for every consumer. A special discount is a reasonable reward for a company that does special work. At the antitrust trial, IBM complained that it didn’t get the same deal on Windows 95 that Compaq did—even though IBM did nothing help with Windows 95, and only belatedly decided to license Windows 95 when IBM discovered that IBM’s own OS/2 wasn’t very popular.

But under the terms of the settlement, Microsoft is forbidden to offer special negotiated discounts to companies that help develop better products. The inevitable result will be more bugs, and software that has less testing, and is inferior to what would be produced in a world without the anti-competitive mandate of antitrust.

The real harm of the Microsoft antitrust case, however, has little to do with the terms of the settlement. Rather, the case’s greatest destructive effects are how the case has transformed the computer business from one that was proudly independent of the government into a business which participates in the same illicit relationship with government as does most of the rest of American big business. To understand this problem, let us look at antitrust law and the Microsoft case in political terms.

The principal-agent problem has long been recognized as one of the keys to understanding government intervention in the economy. The government is supposed to act as the agent for its master (the people). But the government’s interest may not always be the same as that of the people. So when the government claims to act as the agent of consumers, the government may in fact be promoting its own interest (more government power) rather than consumer interests (better products at lower prices).

As economist Bruce M. Benson and other authors have explained, antitrust is just as subject to the public choice problem as any other form of regulation. That antitrust is enforced through post-hoc lawsuits, rather than anticipatory rule-making, does not alter the public choice incentives.

Indeed, antitrust is well-structured to enjoy insulation from the normal political processes that combat government economic favoritism. Most forms of regulation consistently harm some companies while benefiting others; antitrust, though, targets a shifting set of victims—sometimes large companies, sometimes small ones. Some industries may be left alone for decades, while others are hounded incessantly. And unlike with regulations such as federal price-setting for air or bus travel, the harm to consumers is indirect, and not felt first-hand. Further, antitrust enjoys intellectual respectability among some scholars who are ordinarily critics of government control of the economy.

Milton Friedman used to be one of those scholars, because from a standpoint of theoretical economics, a proper use of antitrust could benefit consumers—such as by deterring conspiracies to fix prices. Yet in 1998 Friedman noted that many of his fellow economists have concluded that antitrust laws "tend to become prey to the special interests. Right now, who is promoting the Microsoft case? It is their competitors, Sun Microsystems and Netscape."  In the abstract world of economic theory, "Monopoly is a problem," Friedman acknowledged, and for that reason antitrust used to enjoy universal support among economists. But in real life, monopoly "tends to be transitory, to be very short-lived in most cases. The only ways in which monopoly can last is when it has government backing."  In 1999,  Friedman elaborated: "as I watched what actually happened, I saw that, instead of promoting competition, antitrust laws tended to do exactly the opposite, because they tended, like so many governmental activities, to be taken over by people they were supposed to regulate and control. And so, over time, I have gradually come to the conclusion that antitrust laws do far more harm than good, and that we would be better off if we didn’t have them at all, if we could get rid of them."

In The Wealth of Nations, Adam Smith argued that "Consumption is the sole end and purpose of all production, and the interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer." The Microsoft case was accompanied by the usual pro-consumer rhetoric – despite the government’s failure at trial to prove that consumers had been harmed. Indeed, the government never put on a single witness who described consumer harms. To the contrary, Microsoft’s market successes in operating systems, spreadsheets, word processing, Internet browsers, and other software products were the result of dramatic price reductions and quality improvements. Consumers benefited, but competitors suffered greatly. It was these suffering competitors who were the origin of the Department of Justice case against Microsoft.

Microsoft was a better  market entrepreneur than anyone else, but the company failed to realize that its competitors were political entrepreneurs. The Federal Trade Commission (in the early 1990s) and the Department of Justice (starting in 1993) did not develop an interest in Microsoft by reading computer industry news magazines. Rather, they began to notice Microsoft only after a long, persistent, and well-financed lobbying campaign by various Microsoft competitors. The acronym for this group is NOISE (Netscape, Oracle, IBM, Sun, Everyone else).

Among the most prominent companies in "everyone else," was Novell, a Utah-based company which has suffered doubly at the hands of Microsoft. Novell’s small-office networking business has been eroded by the small office networking capabilities built into Windows 95, and improved in Windows 98. Novell also bought WordPerfect when it was still the leading word processor, and sold it a few years later for a loss of hundreds of millions dollars, as WordPerfect was supplanted by Word, due to Novell’s miserable product management. Utah is also the home state of Senator Orrin Hatch, chair of the Senate Judiciary Committee in 1995-2001. His widely-publicized anti-Microsoft hearings helped lay the political foundation for the DOJ antitrust prosecution.

AOL was also an important member of NOISE, even before AOL acquired Netscape. While Netscape did sincerely care about Internet Explorer—as a threat to Netscape head Jim Barksdale’s self-proclaimed "God-given right to a 90% market share"--the rest of the NOISE coalition did not. They had about as much genuine concern about the Internet browsers as Lyndon Johnson did for whether the North Vietnamese had actually been the aggressors in the Tonkin Gulf Incident. The alleged aggression was simply a pretext for war with a long-hated enemy.

What about the rest of NOISE? IBM sells to businesses and consumers, while Oracle and Sun sell almost exclusively to businesses. For all three companies, the model is high price and low volume – the opposite of the Microsoft model. Like Microsoft, Sun itegrate a web browser into its Sun Solaris operating system. Until 1993, if you wanted to buy the Sun Solaris operating system, you also had to buy microprocessors, storage, system software, and middleware from Sun, or from a small number of Sun-licensed affiliates. Sun makes two types of workstations, and one type works only with Sun servers. IBM also offered its customers limited choices in the past, although competition resulted in has looser practices.

Nobody challenged the model of making business customers buy everything from a single source. That is, until Microsoft entered the market in the early 1990s. Microsoft’s Windows NT operating system for servers is sold as a stand-alone product, and works on many different kinds of computers. The NT software is also simpler to use, has a well-designed easy graphic interface, and is cheaper than the products from the dominant companies. Computer hardware to run Windows NT machines is made by many different manufacturers, and is significantly cheaper than the proprietary Solaris machines made by Sun. With Windows NT as a platform, low-cost hardware companies like Dell and Gateway (which at the time knew a lot about Windows, but nothing about Unix) could start taking sales away from more expensive machines.

Suddenly, the NOISE companies discovered that Microsoft Windows 3.1, and then Windows 95, and then Windows 98 (all made for the desktop market, not the server market) were infected with all sorts of antitrust violations. Incidentally, these consumer products also happened to be the cash cows that gave Microsoft the resources to get into the server software business. These consumer products also used a popular graphical interface that made many office workers eager for their companies to adopt Windows NT—since the worker could use an interface like the one that was already familiar from his home computer.

Did the NOISE companies really believe their fantastic warnings about Microsoft’s "chokehold" on the Internet? Was Microsoft’s style of competition really different from that of the NOISE companies? In fact, every weapon Microsoft used in the browser war (e.g., giving the product away, special deals with favored websites) was also used by Netscape.

Microsoft’s Internet Explorer – the original target of the Department of Justice’s antitrust suit -- is descended from the Spyglass browser, for which Microsoft bought a license from its creator Doug Colbeth. But when Microsoft started giving the browser away for free (to beat Netscape), Colbeth’s licensing agreement became worthless. The Department of Justice interviewed Colbeth as a potential witness in the antitrust case. But Colbeth refused, explaining that Microsoft simply behaves like every other Internet company, and that the CEO’s complaining about Microsoft are hypocrites: Netscape’s "Barksdale and [Sun’s] McNealy, they’ve all done what Gates has done. There is nothing there I wouldn’t have done."

It is strange that Americans are being lectured on business ethics by Larry Ellison of Oracle. Ellison hired a detective company (previously known for digging up dirt on women who accused Bill Clinton of sexual misconduct) which attempted to steal trash from the offices of think tanks which defended Microsoft. Ellison defended the theft and spying on the grounds that it was a "public service." If only Richard Nixon had been creative enough to claim that the Watergate burglary showed his commitment to open records and public disclosure. More recently Ellison tried to convince the Bush administration to create national ID card – which would run on Oracle’s database software.

Not just Oracle, but the entire NOISE coalition has lobbied, successfully, to pervert the law, and to deploy the coercive force of government against a company which has done nothing wrong except compete aggressively and cut NOISE’s profit margins. To add insult to injury, the NOISE propagandists self-righteously proclaimed their devotion to "competition." It is as if Torquemanda began each Inquisition by announcing his firm support for religious liberty and tolerance.

By bringing the antitrust case, the Department of Justice demonstrated to every computer maker in America that NOISE political tactics were a good way to get the government to harm one’s competitors.

Sadly, Microsoft has also learned political lessons. Microsoft used to be a company which was proud to stay out of politics. Even after an FTC investigation in the early 1990s (over Microsoft’s agreement with IBM to work together on the development of the next iteration of Windows and on OS/2), after a Department of Justice investigation culminating in a 1995 consent decree, and after a 1997-98 lawsuit over the consent decree (in which Microsoft’s interpretation was vindicated), Microsoft’s financial and lobbying involvement in Washington was puny. In 1995, Bill Gates was naďve enough to declare that political issues are not "on our radar screen." As of 1994, the company had one lobbyist in Washington. Even in late 1997, Microsoft "had zero presence on the Hill," according to Republican Rep. David McIntosh.

Incredibly, Microsoft’s political non-involvement was dubbed "arrogant" by the Washington, D.C., establishment – as if the D.C. political class were an organized crime syndicate to which every large company should be expected to pay protection.

The May 1998 antitrust lawsuit served as a Pearl Harbor for the company, which finally began to spend as much money on lobbying and campaign contributions as do similarly-sized companies which are under heavy political attack. In 1995, the Microsoft PAC spent only $16,000 in 1995 (on copyright and encryption issues), but now Microsoft is one of the largest corporate political donors in the U.S. Microsoft has bought itself a major lobbying presence in Washington, and begun throwing soft money at the two major parties, and hard money at various candidates.

Microsoft’s belated self-defense spurred Microsoft’s competitors (who got into the influence-buying game years earlier) to put out their paid consultant Robert Bork to fret that "There is so much Microsoft money flowing through the system that the danger for nonpoliticized law is very real." This was like Hirohito complaining that American submarines were threatening to militarize the Pacific Ocean.

Microsoft’s enemies managed to gin up a mini-scandal in early 2000, over the fact that Microsoft and its allies were lobbying against a record budget increase for the DOJ Antitrust Division. If Microsoft’s lobbying was morally wrong, then it is wrong for victims of abusive IRS enforcement to lobby against a higher IRS budget, for gun stores victimized by the BATF to lobby against BATF budget increases, and for Branch Davidian survivors to lobby against more money for the FBI "Hostage Rescue Team." In fact, Microsoft’s mistake was not that it lobbied in 2000, but that it failed to lobby in earlier years to reduce or eliminate the budgets of abusive federal divisions and bureaus. When a pack of wolves is tearing into one’s tent, an interest in predator control is legitimate, but belated.

Given the new national mood after September 11, Microsoft is probably safe from the political predators, at least for the foreseeable future. The Antitrust Division appears to be less interested in playing to the politics of envy and attacking successful American businesses. Yet one can only wonder how much stronger the information economy, and the rest of our economy, might be today if corporate success depended entirely on satisfying consumers, rather than on the ability to employ or resist the use of antitrust laws as a political tool against business competition.

David Kopel is Research Director at the Independence Institute, and Director of the Center on the Digital Economy at the Heartland Institute. He is the author of Antitrust After Microsoft  (Chicago: Heartland Inst., 2001).

Copyright  2015 David Kopel 柯大為