Commentary Magazine


Case Dismissed

To the Editor:

“This case . . . should never have been brought.” That is how Edward Rothstein captures the essence of the government’s pathetic crusade against the nation’s leading software maker [“Wronging Microsoft,” September]. In a few incisive pages, chock-full of economic common sense—the kind that somehow eluded the legal whiz kids in the Justice Department—Mr. Rothstein demolishes the government’s claims.

Still, a federal trial judge, a unanimous seven-judge appellate court, the antitrust division of the Justice Department, and nineteen state attorney generals were united in supporting those claims. How could this be? Surprisingly, part of the explanation stems from America’s entrepreneurial enclave, Silicon Valley. Billionaire businessmen like Larry Ellison of Oracle and Scott McNealy of Sun Microsystems skillfully used their political influence in an attempt to bring down their prime competitor, trying to accomplish through legal action what they had not been able to achieve in the marketplace.

As for the part played by the federal courts: start with a technologically challenged, publicity-seeking trial judge, then add an appellate court bound by the rules of civil procedure, which require utmost deference to a lower court’s findings of fact. The result: a pitiful waste of time, taxpayers’ money, and intellectual capital.

Robert A. Levy
The Cato Institute
Washington, D.C.

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To the Editor:

Edward Rothstein overlooks the crucial role played by Sun Microsystems and its CEO, Scott McNealy, in the case brought against Microsoft. In its earliest days, Sun’s Java software was touted as a possible new operating system. When Microsoft saw Java’s potential and recognized it as a threat to its own Windows program, it licensed Java from Sun and modified it to run on Windows. Claiming that Microsoft had polluted Java, Sun began lobbying the Justice Department, and the lawsuit eventually followed.

It should be emphasized that while Microsoft was integrating its own browser, Internet Explorer, with Windows, Sun decided not to integrate a rival browser, Netscape Navigator, with either Java or its two existing operating systems (SunOS and Solaris)—or at least not to an equal extent. Microsoft was thus punished for advancing the state of the art at a time when Sun and other vendors could have tried the same thing but chose not to. It is for this reason alone that the Microsoft decision should have been overturned, and the case against the company dismissed.

Doron Becker
Potomac, Maryland

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Edward Rothstein writes:

Both Robert A. Levy and Doron Becker raise excellent points about the competition facing Microsoft and how Microsoft, in turn, faced it.

As Mr. Levy writes, Microsoft’s competitors were extraordinarily aggressive lobbyists. The journalist John Heilemann, no great friend of Microsoft, has documented in Pride Before the Fall how Sun Microsystems spent $3 million building the Justice Department’s case, privately hiring attorneys, collecting evidence, and coaxing other competitors to provide testimony. In addition, as Heilemann shows, a main concept used to attack Microsoft in the case—the concept of “middleware”—was invented by its opponents; that concept, as I argued in my article, is profoundly flawed.

Of course, all competitors in antitrust cases complain about each other. In this case, however, the level of complaint was amplified by the peculiarly aggressive culture of Silicon Valley. The fact that Microsoft once said it intended to “cut off” Netscape’s “air supply” has been cited as evidence of Microsoft’s own anti-competitive attitude. But that was mild. The CEO of Oracle, one of Microsoft’s rivals, told his staff that it was not enough that Oracle win; its opponents had to lose, and be left “pleading for their life.” During the trial itself, the Sun Microsystems general counsel said of Microsoft, “We’ve got our boots on their throats. The right thing to do is press until they stop breathing.”

Such extremist talk has been given greater potency by the hatred of Microsoft that has consumed the computer industry and that lately has been on display again as the software giant has introduced its new XP version of Windows. The hatred is partly a function of Microsoft’s extraordinary power (which is not, I insist, monopolistic): it rankles that manufacturers and designers are forced to mold their machines around the marketplace’s demand for Windows. Software developers, whose culture is inherently individualistic and idiosyncratic—and every one of whom believes he can find superior alternatives—are still more resentful of having to defer to Windows. In short, the libertarian culture keeps confronting the commercial culture—and has, until now, kept losing.

A final point relates to the Java programming language, cited by Mr. Becker. During the trial, much was made of Microsoft’s “pollution” of Java and its seeming attempt to sabotage Sun’s innovation. But until very recently, Sun’s Java was notoriously unreliable. In an April 1998 review, PC Magazine reported: “Never mind what’s going on in the press. For the second year in a row, [Microsoft's] Java environment was the fastest and most compatible on our tests. And it wins our Editor’s Choice.”

Before the case, Attorney General Janet Reno said that one of the government’s jobs was to “convince” consumers that Microsoft was harming them. The first lesson in that effort has been a disaster.

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