Q&A: Judge Bork Calls Microsoft Case Nonsense

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October 16, 1998 (5:11 PM EDT)

Q&A: Judge Bork Calls Microsoft Case Nonsense

By Paul Schindler,

Both Netscape and Microsoft tried to hire former federal appeals court Judge Robert Bork to work on the antitrust case filed last May by the U.S. government. "I chose Netscape because I thought they were right," Bork said.

Listen to Robert Bork ridicule Microsoft's position in the antitrust case filed against it. runs 9:24 (requires RealAudio player)

The controversial jurist is probably best known for being rejected by the Senate when he was nominated for elevation from the federal appeals court to the Supreme Court justice. One factor in his rejection was strong opinions, strongly expressed.

The years have not mellowed Bork. He calls Microsoft's claim that it's not a monopoly "high comedy," and one of its arguments on the subject "precisely, nonsense."

The actions Microsoft has taken, Bork said, aren't in themselves illegal. He conceded they may well be industry practice. "If Microsoft were a competitor and not a monopolist, it could use these tactics and no one would complain," he said. "I certainly wouldn't complain." But because Microsoft is a monopolist, the tactics are illegal and the government must intervene.

TechWeb Internet's Paul Schindler interviewed Bork on Oct. 16, 1998.

Let me start with the simplest question: What's your analysis of the Microsoft antitrust case?

That's not the simplest question of all. The case against Microsoft really depends on a theory that one may not use a monopoly to engage in predatory tactics to maintain that monopoly. You can get a monopoly lawfully, but you may not keep it by predatory tactics. Here, the predatory tactics include, at least, the bundling of Microsoft's browser with their operating system with the explicit intention of driving Netscape's browser from the market.

I say explicit intention -- that is to be seen in the documents they produced for the government, ranging from Bill Gates throughout all the senior executives. It is quite explicit. They intend to keep Netscape from selling to original equipment manufacturers, or getting promotion done by online services and so forth.

In addition, they have a series of contracts of various sorts that have exclusionary features designed to prevent other people, particularly Netscape, from competing and making arrangements with their online services and so forth.

There's a welter of these things. They pretty much answer the question of whether Microsoft's efforts in doing these things was, as they claim, to create efficiency, or whether it was, as the documents plainly indicate, that the intent was entirely exclusionary, to maintain their monopoly in the operating system.

"I chose Netscape because I thought they were right."

Judge Bork, I'm not familiar with all your antitrust opinions. Does this square with your previous opinions on antitrust?

Oh, yes. If it didn't, I wouldn't have taken the case. In fact, it is public domain that I was offered retainers by both Microsoft and Netscape. I chose Netscape because I thought they were right.

That part of my book, called The Antitrust Paradox, deals with a situation like this. It is a discussion of the Lorain Journal case. In that case, a monopoly newspaper ... was indispensable to local merchants. It announced it would no longer carry the advertising of any merchant which advertised on a small radio station nearby.

The Supreme Court had no difficulty in finding that was attempted monopolization, the retention of a monopoly by improper tactics. I think that case reads just about directly on this case. My analysis of it in the book is that the Supreme Court was right in that case.

A lot of Reagan Justice Department officials have lined up on the Microsoft side. They find the government's decision is inconsistent with their hands-off position on antitrust enforcement. You were associated with that administration. What's your analysis of their analysis?

In the first place, I wasn't really associated with the administration. Ronald Reagan appointed me to a court. That was the extent of my association with the administration. I didn't have any policy-making role at all.

But I don't think it is inconsistent with the philosophy that should have activated the government back then, and did in large measure. I think if you say "hands off" in this case, what you're really saying is "don't enforce the antitrust laws at all." I've never taken that position.

I don't think the Reagan administration did either. After all, it was the Reagan administration, under Bill Baxter, head of the antitrust division, that broke up AT&T. I don't think there's a general hands-off philosophy that runs. I think they thought, and thought correctly, that a lot of government actions were foolish, but not all by any means.

Not throwing the baby out with the bath water?

Right

One of Microsoft's defenses of its actions is that this is the normal course of the computer software business, because of coopetition and the need for standards. I assume you don't find that much of a defense.

I don't. For one thing ... if Microsoft were a competitor and not a monopolist, it could use these tactics and no one would complain. I certainly wouldn't complain. Because if they bundled their browser into their operating system, any customer who didn't like that, or wanted to use some other browser, could go elsewhere. Any customer that didn't like their exclusive contracts could go elsewhere.

And that is true of all the other companies in the software business who are not monopolists. They can use these practices if they wish. They create efficiency. When a monopolist does it, it is not clear it creates efficiency. It may be a means of just keeping people out.

I think the internal documents Microsoft has turned over to the government are quite explicit. The whole purpose of these things was to prevent competition from developing with their operating system.

"I think if you say 'hands off' in this case, what you're really saying is 'don't enforce the antitrust laws at all.' I've never taken that position."

Microsoft says it does not have a monopoly. Is it sophistry? Linguistics?

I know. I think it is high comedy. They say they are not a monopolist. You ask them how someone who is shipping 97 percent of operating systems currently is not a monopolist. One answer is, "We have to compete with our installed base" -- meaning any prior computers out there with Microsoft Windows in it. They have to compete with that to sell new Windows things.

Which is, precisely, nonsense. People are buying new computers all the time, either new computer users or people who are upgrading, as the hardware improves rapidly. When they do, they get the operating system that comes with it. There is no competition between the operating system in the new computer and that in the computer that is being thrown away.

Microsoft suggests you could use Unix, a mainframe, or a minicomputer.

A mainframe. That's a wonderful idea. I must get a mainframe in my office. That's ridiculous. There are a few other operating systems. That's what worries them. They don't have a very large market share.

But what worries Microsoft is that if you take Netscape's browser and Java's language and put it across other operating systems, they will no longer have a monopoly, because people won't care what operating system underlies that. Microsoft's clout in the operating system field would be gone. That's why Microsoft saw Netscape, Java, and Sun Microsystems as threats to their monopoly.

"[Microsoft's]intent was entirely exclusionary, to maintain their monopoly in the operating system."

One Microsoft argument I would have expected you to have some sympathy with is that this is a camel's nose in the tent, and that the government will start telling private firms how to design their software.

I would have sympathy for that if it had any truth to it, but it doesn't. When the government went after the Standard Oil trust and John D. Rockefeller, I suppose you could say, "Do we want the government to tell us how we can drill oil and what we can sell?" and so forth.

That's nonsense. The government doesn't intend to design software or prevent Microsoft from designing their software and operating system any way they want to.

The only time the government will intervene is when they do something which is not efficiency producing but exclusionary and intended to preserve a monopoly. That is the case with the bundling of the browser into the operating system. Nothing else that Microsoft has put into the operating system is being challenged by the government, and the government will certainly not be designing these things.