The Roots of the Microsoft Antitrust Case: An Analysis of Judge Jackson’s Finding of Fictions Part 3

by | Feb 22, 2000

Judge Jackson’s visceral antagonism to business is also revealed by his condemnation of Microsoft for winning the browser battle against Netscape when “superior quality was not responsible for the dramatic rise [in] Internet Explorer’s usage share.” (Paragraph 375) Note the implicit premise in this condemnation: If Microsoft hasn’t produced a product that is technologically superior, […]

Judge Jackson’s visceral antagonism to business is also revealed by his condemnation of Microsoft for winning the browser battle against Netscape when “superior quality was not responsible for the dramatic rise [in] Internet Explorer’s usage share.” (Paragraph 375) Note the implicit premise in this condemnation: If Microsoft hasn’t produced a product that is technologically superior, then only commerce can explain its success. Jackson is repulsed by the notion that successful computer companies require both technological savvy and business skills; in his ideal world, Silicon Valley would be populated solely by computer scientists with nary an “alarming” venture capitalist or “threatening” businessman in sight.

Judge Jackson’s praise for innovation, however, might seem to contradict his overall attack on successful businesses. Technological innovation is a source of business success, is it not? Although Judge Jackson recognizes that technological innovation causes businesses to succeed, he believes that this innovation has another, more legitimate, function. He writes:

In many cases, one of the early entrants into a new software category quickly captures a lion’s share of the sales. … What eventually displaces the leader is often not competition from another product within the same software category, but rather a technological advance that renders the boundaries defining the category obsolete. These events, in which categories are redefined and leaders are superseded in the process, are spoken of as “inflection points.” (Paragraph 59) (Emphasis added.)

Innovation appeals to Judge Jackson not because it leads to the creation of wealth, but rather because it tends to tear down the market leader. He argues that the emergence of the Internet in the mid-90s was one such “inflection point.” (Paragraph 60) Thus, the nature of his support for innovation explains his disgust with Microsoft’s defeat of Netscape: By introducing its browser product sooner, Netscape should have replaced Microsoft–if only Microsoft had not engaged in the “vicious” commercial competition that ensured its continued leadership in the computer industry.

These beliefs ultimately lead Judge Jackson to conclude that Microsoft’s “monopoly power” has “harmed consumers in ways that are immediate and easily discernible.” (Paragraph 409) What are these alleged harms? Judge Jackson claims (wrongly) that the integration of Windows 98 and Internet Explorer does not allow employers to block employees from surfing the Web. He asserts that vast “confusion” reigns among consumers–but beyond one or two offhand references throughout the ruling, he never explains this vague allegation. Moreover, he claims, the integration of Windows and Internet Explorer has created slower computers with more bugs–as if computers are slower and less dependable than they were two years ago! One might regard such mythical “harms” as the laughable allegations of a Luddite–if they did not come from a judge who wields the coercive power of the federal government.

Regardless of how trivial these alleged harms may be, Judge Jackson seems sincerely to believe that Microsoft is acting as a vicious monopolist. Why? He answers this question in the last few sentences of his ruling: “Microsoft’s past success in hurting such companies and stifling innovation … occur for the sole reason that [other companies and their innovations] do not coincide with Microsoft’s self-interest.” (Paragraph 412) (Emphasis added.)

It takes Judge Jackson more than 200 pages, but in the end he names the essence of his disgust for Microsoft–and the essence of the antitrust laws. In so doing, Judge Jackson exposes the fundamental moral premise dictating his factual distortions, his fallacy-ridden arguments, and his illogical conclusions: a hatred for any form of self-interest.

The morality of altruism or self-sacrifice is often presented as a form of benevolence, as if it simply means being nice to other people. But the actual meaning of this philosophy is a hatred of success. Under this morality, anyone who achieves some extraordinary wealth or distinction owes it to his fellow men to sacrifice what he has earned–including giving away his whole fortune, as and when it is demanded by others. (This is essentially what has been demanded of Bill Gates.) But what about those who have not achieved anything? They are entitled to welfare programs, private charities, protective legislation, and a host of other unearned benefits to be paid for by those who have succeeded. In this system, anyone who earns success through his own effort is to be punished, while anyone who hasn’t exerted any effort and hasn’t attained any success is to be rewarded.

Far from standing for benevolence or good will, such a moral outlook stands for destruction. This code of sacrifice demands an assault on a Microsoft or a Bill Gates. By amassing so much money and achieving so much success, they must be shirking their duty to sacrifice to others. But it does not demand the destruction of the Netscapes of the world because, by virtue of having faltered, they are the “have-nots” who are entitled to benefit from the sacrifice of their more-successful competitors.

Note that the ultimate standard of this moral outlook is not the well-being of the poor, the weak, the downtrodden; has the welfare state ever achieved these aims? Instead, the goal is the sacrifice of the rich, the strong, and the powerful–not to achieve any positive aim, but simply to punish them because they are rich, strong, and powerful.


[i] Bill Gates, The Road Ahead 64 (1995)
[ii] US v. Microsoft, No. 98-1233 (TPJ) (D.D.C. Nov. 5, 1999) (findings of fact). All references to the findings of fact hereafter will refer only to the paragraph number.
[iii] United States v. Trans-Missouri Freight Association, 166 US 290, 324 (1897), emphasis added.
[iv] Albrecht v. Herald Co., 390 US 145, 153 (1968).
[v] Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 377 (7th Cir. 1986), citing Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 US 585 (1985) (holding that a monopolist has a duty to help a competitor).
[vi] US v. Aluminum Co. of America, 148 F.2d 416, 431 (2d Cir. 1945).
[vii] “Statement by Bill Gates on the Findings of Fact,”, visited Nov. 11, 1999.
Mr. Mossoff is a professor of law at Antonin Scalia Law School at George Mason University. He is a Visiting Intellectual Property Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, a Professor of Law at the Antonin Scalia Law School of George Mason University, and a Senior Fellow at the Hudson Institute. His scholarship has been relied on by the Supreme Court, by federal courts, and by federal agencies, and he has been invited numerous times to testify before the Senate and the House of Representatives on proposed intellectual property legislation. Visit his website at

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

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