Judge Motz and the Antithesis of
[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.
up for CAC's Newsletter
Keep up with the latest news—type
in your e-mail address and click Go!
You ask the
tough questions and we answer them.
The Moral Basis of Capitalism
the only moral social system. Learn why.
The Moral and the Practical
practical for the same reasons that make it moral.
Capitalist Book Club
Purchase the essential
texts on capitalism.
Learn about the
News mentions, press releases and speakers.
Send us a comment or
ask a question—we want to hear from you!