September 20, 2007 4:00 AM PDT
Perspective: Has Google actually read U.S. v. Microsoft?See all Perspectives
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It argues that enforcement of the consent order should be toughened, and its duration extended beyond the current November expiration date. Because several states--including Google's home of California (ah, coincidence is wonderful)--endorsed the idea of an extension at the status hearing on September 11, and the judge is deliberating, the attempt must be taken seriously.
Google's objection concerns desktop search. Microsoft's latest operating system, Vista, has such functionality and, of course, Google is in the business of distributing a desktop search program, with particular attention to linking it with Google's global Web searches.
Google cannot complain that its desktop search does not run on Vista; it runs just fine. Nor can Google protest that its offering is somehow blocked; Vista permits end users and original equipment manufacturers to select an alternative desktop search program. Nor can Google claim to have been blindsided by the issue; Microsoft worked with Google and other companies along with various governments, on the search issue. For its part, the U.S. Department of Justice, along with most of the states, appears satisfied with the resolution.
So what is really going on in Google's collective mind? I think it boils down to a couple of things. First, Google and Microsoft are colliding as the tech world evolves, so disrupting Microsoft's plans is its own reward. Second, Google has a dominant position in general Web search. Integrating Web search closely with desktop search would reinforce and extend this power. An effective way to accomplish this is to force Microsoft to do it in the name of "fostering competition."
The weaknesses in Google's argument are that it has nothing to do with the original Microsoft case or with the purpose of the consent order, and that it does not relate to the conditions of the market that have developed in the years since the case ended.
The litigation determined that Microsoft had a monopoly over operating systems for Intel-based PCs. But having a monopoly is no offense under the antitrust laws when it was honestly attained by superior skill and foresight, and this was clearly true of Microsoft. Historian Martin Campbell-Kelly notes that as of 1985, two dozen alternatives to MS-DOS were offered by more than 20 vendors, many of them bigger than Microsoft. Microsoft won by being the best at meeting the needs of consumers and developers.
The only antitrust charge against Microsoft that survived was that it had acted to maintain its monopoly. In particular, it hobbled the use of "middleware," which was defined as software that could serve as a bridge between applications and the Windows operating system. In accord with the crucial role played by Netscape and Sun Microsystems in persuading the Justice Department to bring the case, Navigator and Java were singled out as examples of middleware.
The government's theory was a sort of double bank shot--if enough application writers chose to link to middleware rather than to Windows itself, then the middleware programs could take all these apps with them and decamp to link with some other operating system, which would then provide competition to Windows.
James V. DeLong is special counsel for Kamlet Shepherd & Reichert. He is also vice president and senior analyst for the Convergence Law Institute. The opinions expressed here are the author's alone.
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