FC: US v Microsoft book by NYT reporters, reviewed by D.Lindsey

[Declan McCullagh <declan () well com>]

[The New York Times' Joel Brinkley and Steve Lohr recently wrote a book on 
the Microsoft trial. I read through it in manuscript form, but never had 
enough time to write a review. (If I had, I would have probably said that 
the highlights of the book were the profiles of the personalities, not the 
day-to-day reports that looked, sadly, much like repackaged news articles.) 
Duncan Lindsey, a professor at UCLA, kindly forwarded me his review for our 
consideration. --Declan]

********

From: "Duncan Lindsey" <dlindsey () ucla edu>
To: "Declan McCullagh" <declan () well com>
Subject: Re: US v Microsoft
Date: Mon, 11 Sep 2000 07:19:25 -0700


Poorly Debugged Set of Device Drivers


The personal computer software industry has changed the modern world. At 
the beginning of the 1980s Japan was viewed as eclipsing the United States 
as the technology leader. Yet a new embryonic industry was about to change 
all this. The personal computer industry, led by a group of very talented 
and creative entrepreneurs, was emerging. Without question, Microsoft has 
been the premier leader of this industry in the decade of the 80s. In the 
first half of the 90s Microsoft repeated and built upon its premier 
leadership. Microsoft's success provided a foundation for the success of 
the personal computer industry and the many companies associated with 
itAOL, Sun, Dell, Gateway, Compaq, Adobe, Macromedia, Lotus, Apple, Intel, 
and others.

In late 1994 a connection between personal computers and the Internet was 
forged by Mosaicthe first World Wide Web browser. During the next several 
years the personal computer industry would be fundamentally altered. This 
was an "inflection point" (or paradigm shift) as described by Andy Gove in 
Only the Paranoid Survive. Sensing an opportunity to unseat Microsoft as 
the premier software developer Netscape viewed its web browser as a new 
platform for software development. Marc Andreesen boasted that the Netscape 
browser platform with java technology would reduce Microsoft Windows to a 
"poorly debugged set of device drivers." The prevailing platform would be 
the Netscape browser.

Without question, Microsoft was caught off guard by the rapid emergence of 
the Internet. When Microsoft finally "got it" Netscape had established a 
solid installed base of satisfied users. Netscape had Microsoft in its 
sights. With the help of other competitors of Microsoft it embarked on a 
campaign to unseat Microsoft and allow for new competition to determine 
technology supremacy.

When Microsoft finally figured out what was happening they went into battle 
mode. What else would we expect in a free market competitive economy? Now 
the challenge was to see who would emerge victorious. Microsoft had some 
advantages. Although it was late to understand and develop browsing 
software technology, it did have a dominant position in the old (then 
current) operating system technology. The personal computer technology was 
changing rapidly. Either Microsoft would adapt to this new Internet 
technology or it would eventually perish. What were its options?  It could 
build a browser that competed with Netscape and fight head to head. It did 
this. Microsoft knew that if they lost the browser war they would place the 
leadership position of their corporation at risk. But in this head to head 
browser war Microsoft was at a distinct disadvantage. After all, Netscape 
did not simply want to become the premier browser program, they wanted, 
with the help of rivals, to replace the operating system supremacy of 
Microsoft with browser technology that would become the new operating 
system platform for application software. In short, Netscape wanted to 
unseat Windows. Obviously, Microsoft didn't want to unseat itself. But in 
the end that is what Microsoft had to do.

Netscape set out to combine Internet browsing software technology with java 
and API components that would allow it to replace the major operating 
system components previously provided by the Windows operating system. The 
center of gravity for the personal computer software world was shifting 
from the desktop to the World Wide Web. Microsoft realized that to insure 
the survival of their operating system, they would have to include browser 
software components into the Windows operating system.

The struggle between two powerful technology companies was viewed as a 
"browser war," but was really a struggle for control of the operating 
system platform. When Netscape began including operating system components 
and rival java technology into the browser it crossed the invisible line 
between the browser and the operating system platform. The line is not 
always distinct and clear. But Netscape's intention was clear.

When Microsoft countered by integrating browsing software technology into 
its operating system it simply followed a natural course. In fact, no 
modern operating system can fail to include Internet connection technology.

The titans of the modern software industry engaged in fierce competition. 
As earlier history had established, operating systems are a natural 
monopoly. It was likely that only one would survive this clash. The success 
of modern capitalism is borne out of this competition. Microsoft held the 
then current monopoly for personal computer operating systems (leaving 
aside Apple, Palm, Linux, and Solarus). Netscape began with the monopoly of 
installed users of browsers.

Prodded by Microsoft's bitter competitors, Netscape began to cry foul when 
the lead they held in terms of dominating the platform for connection to 
the Internet was declining. Netscape had the political connections and 
access to the US Justice Department. Netscape's lawyers drafted their 300 
page view of unfair competition and put it in the hands of sympathetic 
listeners in the Justice Department and was able to provoke an anti-trust 
action. Instead of relying on civil action for unfair competition, Netscape 
was able, with its many allies in the software industry, to convince the 
U.S. Department of Justice to challenge Microsoft's fairness.

U.S. v. Microsoft by Joel Brinkley and Steve Lohr provides a report of the 
government's case that is sympathetic to the loser of the technology 
battle. It is hard not to have sympathy with the underdog. The advantage of 
the judicial system is that it allows both sides to present their case. 
Brinkley and Lohr portend to be neutral observers but consistently present 
a view that is more concerned with courtroom theatrics than the difficult 
legal and technological issues. The government's chief litigator, Mr. 
Boies, whom they see as the Michael Jordon of attorneys, enthralls Brinkey 
and Lohr. But hopefully the trial outcome for a modern major U.S. 
corporation should not be determined by the courtroom theatrics of a fierce 
litigator.

Netscape beat Microsoft out of the starting gate in the development of 
Internet browsers.  When Microsoft finally figured out the importance of 
the Internet, they integrated their browser into the Windows operating 
system. They did this, in part, to gain a competitive advantage over 
Netscape.  But also, they did it because incorporating browser functions 
into Windows was the next logical step in the evolution of an operating 
systemany operating system. All major operating systems have done the same, 
including Sun Microsystems, Unix, Linux and Apple. Truly, Microsoft did not 
have a choice.

Certainly, Microsoft has been an aggressive and even fierce competitor, as 
have its chief rivals, Sun Microsystems, AOL, Oracle, Apple, IBM and 
others. It should be noted that Sun competes with Microsoft by "giving 
away" a complete set of application software, Star Office, that it paid 
millions for. Sun's main purpose would seem to be to harm sales of 
Microsoft's Office suite. Where are the government anti-trust busters? This 
is about as clear a case of predatory pricing as one could ever find. It is 
also worth noting that neither Sun nor Apple has provided anywhere near the 
access to their operating system that Microsoft has to Windows. Sun's 
Solaris and MacOS are far more closed and provide far fewer add-on 
applications than does Windows.

Today, Microsoft's competitorsSun, Apple, Oracle, IBM, AOL, and othersare 
strong and healthy.  The only difference is that for the first time the 
Justice Department has taken sides.  Unfortunately, it is not a pursuit of 
justice, but a politically motivated assault on a company by its 
competitors, using the Justice Department as the tool. Sun, AOL, IBM, 
Apple, Oracle, Netscape and the others have cheered and encouraged the 
assault, mustering whatever political pressure they can to maintain and 
intensify it.

Microsoft probably overstepped the law in its fierce competition with 
Netscape, and for this it should be punished. But the punishment should fit 
the crime. Microsoft has produced some of the best products available, 
selling them at very affordable prices. Today, most Americans, indeed most 
people in the world, use their software.  It is not an overstatement to say 
that these products have improved the lives of millions of people.

On balance, Microsoft has made an historic contribution to the world, doing 
more to advance our use of technology than probably any other companry in 
recent times. We must weigh its enormous contribution against its 
relatively minor infractions. It should be noted that after years of 
intensive scrutiny and the unparalleled surveillance provided by email, 
that little compelling evidence is provided. There is certainly no "smoking 
gun." One wonders how many of Microsoft's competitors could come through 
the review it underwent less tainted.

Throughout the world today virtually all who use a personal computer are 
using core software developed by Microsoft. This software is both excellent 
and inexpensive. But more important, it is constantly being improved. And 
that is what is at risk in the government's politically sponsored assault 
on one of America's greatest corporations. What is clear in US v. Microsoft 
is the absence of concern for consumersthey are at best an afterthought. 
But shouldn't they be at the center of the case?

The debate about abortion often polarizes into those who support the "right 
to life" and those who are "pro-choice." The terms and perspectives of each 
group frame their understanding. Brinkley and Lohr frame their view of the 
case from a partisan perspective that supports the Justice Department's 
case. But they take their lead from the judge who, throughout the trial, 
seems more interested in punishing Microsoft for having his earlier 
decision overruled by the Appeals Court than seeking the truth. This time 
the judge seeks to avoid being overturned by denying Microsoft access to 
the Appeals Court. In the interest of basic fairness, lets hope he is not 
successful.

One can only hope that Microsoft receives a more balanced hearing at the 
Appeals level than Judge Jackson provided. After all, this is one of the 
premier technology corporations in our nations history. I suspect the 
authors prepared their book on the Microsoft software technology that won 
its position through much hard work, risk and dedication. If Microsoft is 
destroyed we all have a lot to lose. Think of this the next time you fire 
up your computer.

Duncan Lindsey is a Professor in the School of Public Policy and Social 
Research at UCLA.




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