Freeman

ARTICLE

The Philosophical Influence Behind the Microsoft Trial

A Pro-Government, Anti-Private-Property View Dominated the Microsoft Antitrust Trial

OCTOBER 01, 2000 by BARBARA HUNTER

Barbara Hunter is an advanced level computer support specialist at a large law firm.


“. . . trial moves rapidly on when the judge has determined the sentence beforehand.”
—spoken by Malvoisin in Sir Walter Scott’s Ivanhoe

It may seem that the Microsoft antitrust trial was anything but rapid, but a closer examination reveals a pattern of inevitability akin to the trial referred to in the quotation above. A review of the testimony shows a highly disturbing pattern, in which the prosecution (directed by Joel Klein, assistant attorney general in the Justice Department’s antitrust division, and managed by lawyer David Boies) and U.S. District Court Judge Thomas Penfield Jackson in effect double-teamed Microsoft. The judge made little if any attempt to take the role that would normally be expected of the robed member of the court.

Even worse, when the judge announced his intention to order a breakup of the company, he welcomed an additional brief from Microsoft’s opponents while refusing to allow so much as a word of testimony from either the company or its defenders. So much for judicial fairness.

A closer examination of the cast of characters provides some disturbing insights into what was really going on, including the sometimes bizarre announcements and pronouncements that issued both from the court and from the antitrust division. What emerges is an inevitable course leading to a foregone conclusion and waiting only for sufficient time and testimony to create at least some appearance of a genuine trial. A close examination of the government’s (and the judge’s) statements, both written and oral, reveals a line of logic (if it can be called that) whose nature is not legal but rather philosophical. This is not a mystery; rather, it exemplifies the views of the one man who has had his hand in the process in all its stages—Harvard law professor, self-appointed “cyberlaw expert,” and constitutional consultant Lawrence Lessig.

In both the first (trial) phase and the second (sentencing) phase, Lessig served as a “special master” to Judge Jackson, advising him in every detail of the proceedings. The judge, knowing that he was way out of his element in this trial, relied on Lessig day by day. An examination of Lessig’s views, as presented in both his interviews and his recently published book, Code and Other Laws of Cyberspace, leaves no ambiguity concerning his contention that the companies which design and write computer code threaten to control cyberspace and that government must step in to regulate the world of code. Throughout his book the word “regulability” (apparently coined by Lessig to describe his goal) appears again and again. The future, either positive or negative, is measured by the degree to which computer-related companies and other organizations are “regulable” by the government.

One of Lessig’s examples of the importance of this regulability deals with the FBI’s request to the Internet Engineering Task Force (IETF) to modify the computer protocols so the government could “monitor” (read, spy on) traffic on the Internet. The IETF refused to participate in such a process, and as Lessig told a Computerworld interviewer, “There is relatively little the FBI could do to get them to come along.”[1] (Perhaps a sigh of relief is in order at this point!)

Here’s what followed:

But couldn’t legislation compel the IETF to comply with such requests?

Legislation is only as effective as enforcement mechanisms. It’s easy to get Microsoft or AT&T to obey the law because if they don’t, you can seize their assets. But the IETF is just this group of individuals—basically, whoever shows up at meetings—and it’s not clear whose assets you’d seize.[2]

“Seize their assets”? What country is this anyway? It is noteworthy that in this case no law was involved; it was simply a request from the FBI, with no process, either legislative or judicial, behind it.

In the current Microsoft case, Lessig, at Judge Jackson’s request, filed a brief in advance of the judge’s initial ruling. In it, this “expert” submitted a classic bit of circular reasoning with the judgment that Microsoft’s browser bundling (the original issue in the trial) was illegal because it was “unfairly competitive.”[3] As might be expected, the term “unfairly competitive” was never defined, and we are left to wonder when competition crosses the line of fairness and thus warrants intervention by the heavy hand of government.

Lessig’s faith in government as protector of the people in the brave new cyber world covers a good deal of ground, as seen in this excerpt from the same interview:

You argue that the year 2000 problem stemmed, at least in part, from a lack of government regulation. How might regulation have helped?

The question is whether some kind of contract law or tort law might have created the incentive for people to deal with the problem much sooner. We could have minimized the cost of this problem through a law that made it clear that companies would be liable if they produced software [with Y2K flaws] . . . .

This identical point of view can be found in Lessig’s book:

It is a lack of a certain kind of regulation that produced the Y2K problem, not too much regulation. An overemphasis on the private got us here, not an overly statist federal government. Were the tort system better at holding producers responsible for the harms they create, code writers and their employers would have been more concerned with the harm their code would create . . . . And were the intellectual property system more concerned with capturing and preserving knowledge than with allowing private actors to capture and preserve profit, we might have had a copyright system that required the lodging of source code with the government before the protection of copyright was granted, thus creating an incentive to preserve source code and hence create a resource that does not now exist but that we might have turned to in undoing the consequences of this bad code.[4]

Anyone with even a moderate familiarity with the process of software design, development, and modification can recognize the ridiculousness of this government-speak notion that all that is necessary to fix software is to pass a law and punish those who fail to work miracles (to say nothing of the concept of legislation jumping in and interfering with the private contract process). In the case of the Y2K phenomenon in particular, the seeds of the problem were sown in the very earliest days of what we now refer to as “software design.” The modern computer languages had not yet been invented, and code had to be written within the confines of 80-character lines so they would fit on an IBM punch card. The pioneers who designed this early code actually had little faith in the longevity of their code; little did they realize how good those early designs were or how many millions of databases would still be using them. Lessig’s “bad code” notion displays the gross ignorance of a current-day “Monday morning quarterback” passing judgment on the early developments of the industry pioneers of 50 years ago, without which the modern software we take for granted today might never have been developed.

But there’s more (again from Lessig’s interview):

Is our antitrust system agile enough for the fast-paced IT [information technology] world?

. . . enforcement mechanisms are extremely expensive and cumbersome . . . . if they [Microsoft] lose, there will be the claim that, “Why did it have to take us six years to resolve it?” We will see the government try to find ways to fast-track the process.

But will the industry have changed so much that the result just doesn’t matter?

It may be irrelevant with respect to Microsoft. But the reason the government brings these cases [to trial] is not always to deal with a particular party but to establish precedents that will govern behavior in the future. So it could have a positive effect, as long as the perspective is on the rules we are trying to set up for the Information Age generally, as opposed to what are we [sic] doing about Microsoft. [Emphasis added.]

There in a nutshell is the heart of the Microsoft case: Litigate Microsoft into compliance with government decrees, even if it costs the company millions of dollars in legal costs, thousands of hours spent preparing testimony and appearing in court (hours that cannot be used for the productive purposes that benefit consumers), and billions of dollars lost to both employees and stockholders as the government (literally) tears the company to pieces. The real purpose is to give the government “fast-track” power to interpose its will on private companies, breaking them up, rearranging them, redesigning them, or whatever else the antitrust bureaucrats decide will be “fairer” than whatever currently exists. It’s the precedent that counts.

If we put together the government’s entire antitrust division, the special master, and the judge, they would be incapable of developing a single piece of software, much less an operating system, no matter how many years they were given. They know only how to destroy.

Throughout his book, Lessig expresses his faith in government to make things right by the process of regulating. As he sees it (in the following quote regarding “certification” as not just a mechanism but also as a requirement for permission to use the Internet), “If commerce alone cannot succeed in establishing these architectures, government is in a strong position to bring about just the changes that commerce needs. . . . The government can help commerce.”[5]

In the next chapter of his book, he describes how this “help” is to be accomplished:

Even if it is hard to regulate behavior given the Net as it is, it is not hard for the government to take steps to alter, or supplement, the architecture of the Net . . . . This is a regulatory two-step: the Net cannot be regulated now, but if the government regulates the architecture of the Net, it can be regulated in the future. And when government regulation of the architecture of the Net is tied to the changes that commerce is already introducing, I argue, the government will need to do very little to make behavior on the Net highly regulable.[6]

With regard to new possibilities for regulation once the government constrains the architecture of code, he writes, “When the constraint is imposed by code . . . Congress can require that telephone companies adopt a code architecture that makes the network wiretap-accessible.”[7]

Lessig’s faith in government betrays a concept of the purposes of the U.S. Constitution that may seem quite foreign to students of classical constitutional law. In effect, he turns the Constitution on its head, making the government our friend when it uses its regulatory power to “protect” us against those bad private companies. His vision for the Internet is one in which everything we do in cyberspace will be able to be traced by a supposedly benevolent government:

The government could require Internet service providers (ISPs) . . . to employ software that facilitates traceability by conditioning access on the user’s providing some minimal level of identification. Call this a “traceability regulation.” Many ISPs would resist it, but the government could then require that major commercial institutions (including credit institutions) be prohibited from dealing with any ISP not certified to be in compliance with the traceability regulation. Some major institutions, in turn, might resist this requirement, but not many. For major institutions in a competitive market, the threat of government prosecution far outweighs any incentive to violate the law. These two steps would create a great incentive for local ISPs to facilitate traceability.[8]

Lessig’s concept of intellectual property, especially as it applies to copyright law, is far removed from the idea that intellectual property is, above all, property. As he sees it, “Private law creates private rights to the extent that these private rights serve some collective good.”[9] And later, he states, “The state has an interest in defining rights to private property because private property helps produce a general, and powerful, prosperity.”[10] As the author sees it, copyright protection is bestowed by the state to “encourage” intellectual creation, rather than a recognition that intellectual property is property.

Is it any surprise that Judge Jackson’s opinions, advised throughout the trial by Lawrence Lessig, evidence no concern for intellectual property rights with regard to the system code developed by Microsoft and produced by, literally, thousands of man-years of labor including research, development, coding, testing, debugging, and all the accouterments of software production?

Distracted by “Fairness”

How has it been possible for this consistently pro-government-control, anti-private-property point of view to dominate the Microsoft antitrust trial? Partly because, from the very beginning, attention has been focused away from the principles of the case and toward the various “fairness” issues that easily distract attention: Has this or that action been unfair? Is this product better than that product? Does this cost more or less than that? Perhaps some of Microsoft’s actions may be amenable to litigation between or among persons or companies in courts of law. The real issue here is how the government has been given the authority to intervene and to represent the aggrieved parties.

It is noteworthy that the high profile corporations that have joined the attack on Microsoft may be setting a precedent in which the sown wind could reap the whirlwind many times over. If every step taken by a company, not just mergers and the like, must be done with one eye on the job and the other checking whether the bureaucrats in the antitrust division of the Justice Department are going to say, “No, no, we won’t let you do that,” there will be no winners, just an entire world of losers. “Never send to know for whom the bell tolls; it tolls for thee.”


Notes

  1. “Who’s Controlling Cyberspace?” Computerworld, February 7, 2000, http://www.computerworld.com/cwi/story/0,1199,NAV47_STO41085,00.html.
  2. Ibid.
  3. Ibid.
  4. Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999), p. 232; emphasis added.
  5. Ibid., p. 42.
  6. Ibid., pp. 43-44.
  7. Ibid., p. 45.
  8. Ibid., p. 51. (Emphasis added.)
  9. Ibid., p. 131. (Emphasis added.)
  10. Ibid.

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