I think that, if the courts are going to implement the DC Circuit test properly, and assuming they adopt something like the approach I am outlining, they are going to have to go through Microsoft's code, line by line, to determine what code is needed to run IE but not needed to run Windows. DLLs can have different combinations of code, some used by Windows, some by both and some by neither.
That's absolutely impossible. Not just practically impossible, given the fifteen million lines of Windows 98, but absolutely impossible.
I think that's why some of the DOJ witnesses have made the statement "A program is defined by its features." They are probably terrified of the idea that they'd have to dig in to Microsofts code to figure out what's doing what and what *could* be used to do what.
I'm not sure Bork's consumer welfare approach is really appropriate in the case of a natural monopoly like Microsoft, where consumer welfare has been brought as close to the optimal level as can be done given the fact that the normal condition in the market is monopoly. In these cases, you then have the government imposing regulatory remedies to try to raise consumer welfare, something it does not do very well and which I think is incompatible with the basic organizing principles of a free market economy. In other words, where they conflict, Hayek trumps Bork.
I can accept the argument that in a natural monopoly situation, consumer welfare may not be advanced by regulation of that monopoly. I am less sanguine about the argument that the owner of a natural monopoly should be allowed to take steps to maintain the monopoly. After all, if market forces unencumbered by a monopolists power would destroy a monopoly, then who is to say that the monopoly should continue to exist? Are we talking about protecting a monopoly for the benefit of the consumer?
Microsoft didn't have a monopolists power when they were gaining their monopoly. So if they can't keep it without using monopolists power, why let them? Even with their hands tied by the government, they are *way* stronger than anyone else out there. They could have come up with the idea of the browser before Netscape. They could have invented Linux. They could have invented Java. But they didn't. Why should they be able to keep their monopoly from dying a natural death? |
