Dave Kopel 柯大為研究論壇 > 微軟屈服
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Compaq在Windows 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.
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NOISE（Netscape, Oracle, IBM, Sun,及其它）
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Oracle和Sun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 和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Windows95及Windows 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。
by David Kopel
battle with Bill Clinton's trustbusters, Microsoft learned some frightening
lessons about how business
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.
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.
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.
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.
bringing the antitrust case, the Department of Justice demonstrated to every
computer maker in
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
Incredibly, Microsoft’s political non-involvement was dubbed "arrogant" by
1998 antitrust lawsuit served as a
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
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.
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
Copyright 2015 David Kopel 柯大為