Wrong without a remedy

Bad as Microsoft is, why look to Justice for help?

Issue: "Forbes," Nov. 20, 1999

In all the discussion over who's right in the big Microsoft anti-trust case, it strikes me that the most obvious answer has been ignored. Maybe both Microsoft and the U.S. government are wrong. Maybe both should take a careful look at how they come across to common folk.

In one sense, it's a highly technical case. But you don't have to go very deep to discover that the issues aren't all that complex. What we're watching are two bullies, each used to having its own way, and each enjoying pockets so deep and other resources so vast that neither has to worry about running out. The squabble could go on and on, without either party ever really getting roughed up.

What could get badly damaged is our intuitive sense of how things like this ought to be resolved. If we come out of this with lots of folks cynically saying, "That's just how American business operates" or "That's just the way the American government does things," we will have lost a great deal.

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Yet that's precisely what is now regularly said in response to the decision of Judge Thomas Penfield Jackson. Microsoft's defenders, acknowledging the brutal competitive tactics of the world's biggest corporation, answer cavalierly, "That's the nature of free enterprise." And the government's defenders, well aware that billions of dollars in value are being arbitrarily shoveled around Uncle Sam's barnyard, respond, "That's the government's job."

Not so fast.

If you think there's something unseemly about a huge corporation's responding to charge after legal charge by saying, "That's our right!" you're exactly on target. For when the Bible says that "to whom much is given, much is required," there's no reason to think the principle applies only to individuals. It's a truth to be remembered-and observed-by organizations, by nations, by people groups, and even by corporations.

In brief, Judge Jackson has stated that Microsoft used illegal business tactics to destroy threats to its monopoly in operating systems for personal computers. So far, the judge has claimed only this much to be his "finding of fact." Next, he will also have to decide whether those circumstances, which he says are factual, amount to a violation of our nation's anti-trust laws. Not many observers think he will find otherwise.

So how do you know when a corporation has gone beyond acceptably competitive tactics and gone too far? Even in the context of complex legal issues, one basic test ought to be instructive: Is the supposedly offending company using tactics that it wouldn't want used against itself?

Vigorous competition is one thing. And fair-minded people might well disagree over some details of what's included in the term vigorous. But when you start promoting policies clearly and directly intended to wipe your competitor off the map, you've earned the title of a predator and walked all over the Golden Rule. The evidence is overwhelming that Microsoft engaged, all too deliberately, in such activity.

But if the main answer to such abuse by a big and powerful corporation turns out to be another kind of power-play by a big and arrogant government, what kind of gain is that for citizens? Consider this: The very agency of government-the Department of Justice-that is prosecuting Microsoft for engaging in monopolistic practices is itself a monopoly. Even if the Justice Department monopoly accurately diagnoses the wrongs that Microsoft has perpetrated, where is the evidence that that same Justice Department is prepared to provide any remedies that really fit the crime? Is it any improvement to have a huge and unwieldy government step in and try to say how a company like Microsoft ought to be run? The Wall Street Journal referred to such a possibility as the creation of the U.S. Department of Microsoft-monitoring, steering, and restricting each of the company's major research and marketing functions along the way.

This is the same Justice Department, mind you, that under Janet Reno's leadership has demonstrated such a remarkable inability to take care of its own fiascoes in Waco, Ruby Ridge, Whitewater real estate deals, campaign finance issues, and the numerous misdeeds of the Clinton administration. As bad as Microsoft's record is, why should anyone have confidence in Justice's ability to make things better?

Bottom line is that anyone interested in fairness and justice will tend to say: A curse on both your houses. The huge computer and software industry, with or without Microsoft, probably has a pretty good chance at survival. More and more people have doubts whether the same can be said of the U.S. system of justice.

Joel Belz
Joel Belz

Joel, WORLD's founder, writes a regular column for the magazine and contributes commentaries for The World and Everything in It. He is also the author of Consider These Things.

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