MICROSOFT VS. THE WORLD
January 1998 |
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What’s
it about?
Remember the Cold War? Once upon a time, in the dim past
when Netscape was a fledgling and Microsoft had yet to notice the internet, there was no
"Browser War".
Of course, the dim past in the IT universe is as recent as 1994, when start-up Netscape
launched its innovative Navigator browser software. This allowed us to access the World
Wide Web and cruise along the information superhighway. And in this virtual world Netscape
had an actual monopoly.
Bill Gates eventually woke up and smelled the Java, and in a move akin to turning the
Queen Elizabeth on a dime, he reinvented his behemoth and entered the on-line fray.
Unfortunately for Netscape, this has put an end to the exponential growth in its profits
– but what a bonanza it has been for the legal profession!
Enter the giant
In 1996, Microsoft inaugurated its Internet Explorer. First it simply gave it away
– not a bad marketing move! But it was the next manoeuvre that got the goat of the
United States Department of Justice.
In a technique known as "bundling", Microsoft ensured that its browser was
installed with each Windows 95 operating program, the brains of the computer. So there you
are, the proud owner of a new computer that has come pre-installed with Windows 95 and, as
an added bonus, a free Internet Explorer browser. Do you bother to buy or download a copy
of Netscape? Unlikely.
Antitrust or anti-Microsoft?
No, antitrust is not like the anti-matter in a Star Trek episode. This is a legal term,
and in this case it means that the US Justice Department claims that Microsoft has used
its monopoly in the operating systems area (Windows controls over 80% of the market) to
control the browser market. (American antitrust laws began at the turn of the century,
when the Standard Oil Company had a monopoly and controlled the market to such an extent
that no one else had a look in.)
Microsoft claimed that the Explorer browser is an integral part of the Windows 95 software, and so can’t be seen as a
separate item or a separate product – in other words, they can’t remove it
because it’s all one operating system.
A Washington judge, Thomas Jackson, didn’t buy that line and ordered Microsoft to
stop including the browser as part of its operating software. But the MS argument may have
more force when Windows 98 hits the stores. That operating system will be a single
seamless web interface, and from a technical point of view, the browser will not be able
to be excised.
Off to court
American Attorney General called the bundling of Explorer a "monopolistic"
practice and "just plain wrong". Her Department of Justice issued proceedings at
the US District Court of the District of Columbia. The Department of Justice is the
biggest law firm in America, and like it’s Australian cousin, it is the peoples’
lawyer.
One of it’s jobs is to protect business from unfair competition (in Australia the
Australian Competition and Consumer Commission undertakes similar responsibilities).
As we've said, the Department of Justice argued that Microsoft forces companies to buy
the Explorer along with Windows 95 – Microsoft argued that since the Explorer is part
of the system, it cannot be subject to antitrust laws that involve tying different
"products" together.
American antitrust laws forbid companies to sell one product on the condition that
another product must be bought at the same time – especially when the first product
is a market leader like Windows 95 – in a practice that lawyers call
"anti-competitive".
Utility or application
Much depends on a legal definition – is a browser a utility or an application? Now
this is one of those obtuse arguments that lawyers love to encourage. If Explorer is a
utility, it is nothing more than an addition to the existing operating system. If it is an
application, it is an entirely separate product and subject to antitrust laws.
One of the tests, according to the courts, would be whether the browser can be bought
as a separate item. In the best piece of court room theatre since OJ unsuccessfully tried
to jam his hand into a bloody glove, Judge Jackson brought along his notebook computer and
deleted Explorer – lo and behold, Windows continued to function!
Back from the brink
At the end of January 1998 Microsoft took a step back, apparently to avoid the risk of
a $1 million a day fine if it failed to separate its browser from its operating system.
"Microsoft has agreed to immediately make available the most up-to-date, fully
functional version of Windows 95 without forcing computer manufacturers to takes its
browser as well," said Assistant Attorney-General Joel Klein. "This will
increase consumer choice and will also send precisely the right message to the
market."
Microsoft intends to appeal the judge’s order.
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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