General Practice, Solo & Small Firm DivisionMagazine

technology.law
by J. Michael Jimmerson

© American Bar Association. All rights reserved.

J. Michael Jimmerson is a technology consultant with Altman Weil Inc. He is the co-author of A Survival Guide for Road Warriors, a best-selling book on mobile computing for lawyers, published by the American Bar Association. His next book is Windows for Lawyers, to be released in Fall 1998. He can be reached by phone (414/427-5400), e-mail (jimmer@legalcounsel.com) or the Web (www.legalcounsel.com).

It is summer again and time for the next incarnation of Microsoft Windows. Three years ago, Windows 95 roared in like a lion. Windows 98 is timidly being released under a hailstorm of criticism. The Justice Department has slapped yet another antitrust suit against Microsoft.

This latest action, joined by numerous state attorneys general, alleges that Microsoft is exerting its monopoly in the operating system market to further its browser, Internet Explorer. The outcome of this action will probably not be resolved by the time that you read these words.

This controversy hinges around a number of different questions. Is this action designed to benefit consumers? Or is it just a desperate attack by Microsoft's competitors? Moreover, how will the government's actions affect the technology industry? Finally, does any of this matter to users in the legal community?

The argument against Microsoft goes something like this: Microsoft owns a monopoly in the operating system business. Hard to deny because either DOS or Windows resides on 90 percent of the world's computers. Its detractors allege that Microsoft is leveraging this position to create market share in the browser market for Internet Explorer. The Justice Department states that Microsoft is forcing computer manufacturers to display Internet Explorer on the desktop, to the exclusion of others, namely, Netscape. The common sentiment is that Microsoft seeks to control the Internet itself, everything from content to advertising to e-commerce. This last claim is so overbroad that it beggars the imagination but the other claims bear investigation.

The key issue is whether Microsoft's actions harm consumers. Or has this firestorm been launched by a handful of Microsoft's competitors (i.e. Netscape, Novell, and Oracle)? If consumers are not being hurt, there seems to be very little basis for the federal and state action against Microsoft.

Are consumers really being hurt when Microsoft gives away its browser? No one seemed to be raising a fuss when Netscape was giving its browser away. After all, how many people do you know have actually purchased a browser? Even if you have Internet Explorer preloaded, you can still load Netscape. This can even be accomplished using Internet Explorer and cruising over to the Netscape site. Many consumers use both browsers on a regular basis.

Consumers are the real beneficiaries of the technology revolution. Computers are continually becoming faster while also getting less expensive. Sure you have to spring for an upgrade every couple of years, but that is the cost of doing business. We all agree that tech support is atrocious but this is rampant throughout the industry, not just at Microsoft. It is hard to see how Microsoft has harmed consumers.

The problem, according to the anti-Microsoft camp, is that consumer choice is threatened by the Microsoft monopoly, particularly when it is extended from the operating system market to the browser and beyond. Once again, this argument is hard to fathom. Microsoft (and Intel) have done more to further personal computing than anyone on the planet. The open architecture of so-called Wintel PCs has bred a technology industry that no one would have imagined 20 years ago. The real enemies are the proponents of the Network Computer (NC) that threaten to throw us all back to the era of dumb terminals.

Microsoft's adversaries have suffered because they sought to limit choice and because they misread the importance of personal preference. Apple nearly foundered because its proprietary system did not encourage developer support. Novell, once king in the network operating system market, is now trying to play catch-up with Microsoft-not because Microsoft has engaged in anti-competitive practices but because it has given consumers what they want.

In the end, this entire action looks like a feeble attempt to protect a handful of companies that cannot compete with Microsoft. Is this the purpose of the Sherman Antitrust Act? I hardly think so. Let these companies compete in the market place and leave consumer choice as the ultimate arbiter.

In addition, think of the chilling effect that an adverse decision to Microsoft would have. Do we really want the government designing our user interface? After all, the IRS spent billions on a new computer system that they junked at the end of the day. Let innovation rule the day, not lobbyists who don't know the first thing about personal computers. Sorry Ralph, but you are just in over your head.

This is not to say that Microsoft is entirely blameless. Its real problems can be stated concisely. First, Microsoft needs to learn to play nice with everyone else. Just because you are the biggest kid on the block does not give you the right to be a bully. In addition, Bill needs to curry favor in the Beltway. Other companies, including Novell, know how to play this game well. Microsoft should do the same. Finally, Microsoft needs to pay more attention to its loyal customers. One thing that it has learned in this saga is that many of its customers are less than thrilled with the giant from Redmond. Microsoft does not have a legal problem so much as a public relations problem. CL

     


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