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Judge Motz and the Antithesis of Law
[December 27, 2002]

By S. M. Oliva

On Monday, U.S. District Judge J. Frederick Motz issued a preliminary injunction in the case of Sun Microsystems, Inc. v. Microsoft Corporation, the latest antitrust lawsuit to befall the Redmond, Washington software giant. In this case, Sun asked for—and received—an directive from Motz compelling Microsoft to include copies of Java, Sun's cross-platform programming technology, in Windows XP, Microsoft's operating system. The purpose of this injunction, according to Sun and Motz, is to prevent Microsoft's competing .NET system from gaining a competitive advantage over Java due to Microsoft's "monopoly" over Windows. This, as we've been told repeatedly over the past few years, is unfair competition under antitrust law.

"Antitrust law" is a phrase that strikes me as being in the same category as "suicide bomber": While nominally accurate, it places emphasis on the wrong term. After all, a bomber is no less dangerous or evil if he detonates a bomb by remote control; a bomber is a bomber. Conversely, however, "antitrust law" is a misnomer because antitrust is not law at all, but in fact the antithesis of law. Antitrust is the notion that government is the proper arbiter of economics; the fact that such an anti-capitalist concept is advanced through democratic law rather than, say, naked fascism is simply a fanciful detail.

Law, as the founding generations of America understood and applied that term, is the objective application of reason to dispute resolution. Law is what enables man to live in civilized society, as opposed to struggling for mere existence among an anarchic state of nature. Law allows for legitimate disputes to be resolved peaceably and equitably. Above all else, law advances and protects individual rights.

Antitrust, on the other hand, is anarchy's attempt to reassert chaos over law's order. Antitrust denies the very existence of objective law, since antitrust itself is grounded only in vague statute and egalitarian sentiments. At its pinnacle, antitrust holds that any individual who has power is, by definition, qualified to pronounced moral judgment on those who do not. Those businesses and interests that have political pull are, by definition, good under antitrust while those that don't—Microsoft—are presumed guilty under antitrust doctrine.

This is the philosophical backdrop against which Judge Motz's order came. On a practical level, the Sun injunction was simply the next logical step in the campaign begun by the United States Government in their own antitrust action against Microsoft. That case, settled by the Justice Department but being appealed by two state governments, purported to condemn Microsoft as a great evil for earning market dominance with Windows and then—gasp—using said dominance to obtain profits in other markets created by Windows' very existence.

During the hearing to decide this injunction, Judge Motz made a number of questionable comments from the bench, as noted by CAC's Nicholas Provenzo in this post. From the tone of his comments, Motz clearly was ready to rule for Sun almost from the beginning. But at the same time, I would not presume to argue (in the absence of additional evidence, that is) that Motz was not acting correctly under the law. After all, antitrust generally presumes the defendant's guilt from the outset. Unlike murder, rape, or any other objectively defined crime, antitrust violations exist entirely in the eye of the beholder. What this means, more often than not, is that the defendant must prove his conduct wasn't "anti-competitive" or otherwise illegal. Microsoft's very dominance of Windows was itself a presumption of guilt. After all, what rational company wouldn't abuse its monopoly? Of course, the fact that Microsoft had no monopoly—such things are solely the creation of governments, not private businesses—is irrelevant. Facts rarely get in the way of antitrust.

This was not the first time Microsoft faced a clearly biased judge, either. In the government trial, U.S. District Judge Thomas Jackson was explicitly rebuked by the D.C. Circuit Court of Appeals for "deliberate, repeated, egregious, and flagrant" violations of judicial ethics while sitting on the Microsoft case. Judge Jackson gave secret interviews to reporters in which he outlined his own, personal view of how Microsoft should run its business, and how the market should run in general. Such views clearly influenced his initial decision to breakup the company. The Court of Appeals vacated that particular remedy and reassigned the case on remand to another judge, yet the appellate court denied Microsoft's request to throw out all of Judge Jackson's other findings against the company. The Court said that it would be unfair to the government to make them retry the entire case, and in any event Judge Jackson's misconduct did not begin until after the findings of fact and law were entered.

At best this was a cop-out. At worst it was a cover-up for blatant misconduct. The result was the same: The finding that Microsoft was an illegal monopolist became a decided matter of law. This made Judge Motz's job much easier, since he could legally presume from the beginning that Microsoft was guilty. And unlike the megalomaniacal Judge Jackson, Judge Motz was careful to limit his biased remarks to the open courtroom, where he enjoys greater latitude under judicial ethics rules. The U.S. Fourth Circuit, which has appellate jurisdiction in the Sun case, will be far less likely to find Judge Motz guilty of misconduct because of this fact.

The injunction itself is pure nonsense. Sun has no right to assert control over the form of Microsoft's products. But under antitrust, a product's popularity mystically converts it from private property into a public trust. The rapid spread of Windows creates an antitrust obligation on Microsoft to aid the companies trying to destroy it. Antitrust knows nothing of property, only the whims of tarnished competitors seeking redress for marketplace failures in the courtroom. And most judges, like Motz, are more than eager to substitute their own judgment for that of consumers and producers.

To be fair, there is evidence that strongly suggests Microsoft was not totally innocent. In a previous case, Sun presented compelling evidence that Microsoft violated their agreement with Sun over the use of Java in Windows. But that was a simple matter of contract law, and indeed the non-antitrust claims were settled out of court. Those claims are completely legitimate, but wholly separate from the antitrust issues raised before Judge Motz. Even if Microsoft hadn't violated their contract with Sun, they still would have faced antitrust prosecution, simply because antitrust punishes success, not illegal activity.


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