RE: what if microsoft disobeyed the breakup?

From: Matt Gingell (
Date: Tue Jun 13 2000 - 23:24:47 MDT

Billy Brown wrote:
> What makes you think antitrust law is an improvement? As I've already said,
> the market does tend to correct these situations on its own, and government
> intervention dramatically undermines the natural corrective process. I want a
> good argument for thinking antitrust laws will be better than the markets
> natural corrective mechanisms (and, since we are also trampling on private
> property rights and inviting a morass of anti-competitive regulation, it needs
> to be a very good argument).

Which is perfectly reasonable - once a problem is identified and a
verdict is reached (putting aside how that happens) there must be a
heavy burden on the plaintiff not only to demonstrate that the remedy
he proposes will in fact be a an improvement on leaving the market
alone, but also to demonstrate that no less intrusive a solution can
suffice. This is exactly the sort of argument we'll be seeing when MS
goes before the appeals court - they'll be arguing over the facts,
whether the conclusions of law are tenable and supported by those
facts, and over whether the remedy appropriately and minimally
addresses the proven violations. It'll be interesting to watch - I
wouldn't be surprised if the breakup itself gets dropped, but stuff
like uniform pricing across the major hardware vendors, be they friend
or foe, is likely to prove defensible.

(On a bit of a tangent, consider this: For what values of N is the
following proposition true? 'It is better to let N guilty men go free
than put one innocent man in prison.')

> > And it's absurd to equate antitrust with a system where government
> > arbitrarily interferes with every contract and the terms of every
> > business agreement.
> Why is it absurd? Unless you have avery strong demarcation between
> permissible and impermissible interventions, a government agency charged with
> enforcing antitrust law will naturally become more and more interventionist
> over time. The end result is someting like the SCC regulation of commodity
> trading - an omnipresent blanket of senseless regulation that strangles
> everything it touches.

It's as absurd as saying prosecuting violent criminals will inevitably
lead to random Brazil-style kidnapping and arbitrary executions. (Though
there seems to be a vocal contingent on this list that doesn't see any
middle ground between a police state and anarchy.) Like I said above, there
must be a heavy burden of proof. But if that burden can be met, then
intervention is justified.

> Yes. And before we pass such a law, we should demand actual evidence that it
> make things better. Almost our entire current regulatory regime was enacted on
> nothing more substantial that wishful thinking, (or worse, a blind urge to "do
> something" in order to curry favor and/or look important) and almost all of it
> does more harm than good.

I don't necessarily disagree with that sentiment, at least in some
areas. Drug policy is the example that most most readily to mind.
But in this case the solution is better antitrust law, not scrapping
it all together.

> > Do you find not being able to yell fire in a crowded theater an
> > ominous trend? There's nothing arbitrary or senseless about the
> > ruling, disagree with it though you might. Whether it's expensive, or
> > whether it'll just be another MS stock split, only time can tell.
> I call the MS ruling arbitrary and senseless because it is not based on any
> sort of objective standard. If I don't want ot be arrested for shouting "fire"
> in a crowded thatre, all I have to do is refrain from doing so. In contrast,
> there is no course of action Microsoft could have taken that would have
> protected it form an antitrust suit. The laws are so vauge that a hostile
> judge can plausibly find any successful business guilty of 'illegal'
> activities, and impose pretty much any penalty he feels like levying. That
> isn't justice.

If MS can show Jackson's ruling was unjustified then it'll be over
turned - that's why we have an appeals process. MS has yet to
acknowledge they did _anything_ wrong, so barring a major reversal we
can expect them to bring it all the way to the Supreme Court. If the
issues you raise about the coherence / well-formedness of the law hold
water, they'll probably take it.


This archive was generated by hypermail 2b29 : Thu Jul 27 2000 - 14:13:16 MDT