February 21, 2019

.comment: Judge Robert Bork on the Microsoft Settlement - page 3

A Leading Legal Thinker Weighs In

  • January 23, 2002
  • By Dennis E. Powell

In the Linux sphere, perhaps more than in most other places, the word "freedom" is waved like a fly swatter. And there are multiple, sometimes conflicting, definitions of the word, often derived from one's political point of view, which in discussion of the case of U.S. v. Microsoft has been overly distilled -- burnt, really -- into freedom of people vs. freedom of companies. (Some, mostly from countries where totalitarianism or the serious threat of it resides in living memory, manage to lump government in on the side of "big corporations.")

It is both more and less complicated than that. Entities, be they companies, governments, or small groups of individuals or even lone individuals, are capable of misbehavior. Laws exist to provide relief from and in some cases punishment of the transgressors. They also exist to guarantee and enforce the relative safety of entities seeking to go about their business.

So it is not so remarkable that a noted conservative lawyer would see perfect reason for action to be brought against Microsoft for the transgressions we have all witnessed and experienced over the years; what is remarkable is that people would find such a position at all unusual. It is unfortunate that some conservative commentators have sided with Microsoft, which to me is the same kind of knee-jerk response that I find so repugnant when it comes from the other side of the political spectrum. Part of the reason it so repels me is that it leaves the impression that conservatives hold the view that companies can do no wrong -- which is as foolish as believing that individuals can do no wrong, or that government can do no wrong. There's little justification in becoming yet another political sheep in yet another political herd.

Instead, as my friend Bob Bernstein reminds me, the conservative definition of freedom is crystallized nicely by the classical liberal thinker John Stuart Mill: "The only freedom which deserves the name is that of pursuing our own good, in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it."

Individuals are capable of depriving others of their freedom, as recent events so thoroughly demonstrate. It goes almost without saying that governments can, have, do, and will continue to limit freedom. And it is ridiculous to suppose that a company, given sufficient power, and duty bound to serve itself, is incapable of wiping out freedom to the extent its influence allows and its interests are thereby served.

Nor can we attach any particular political philosophy to the Microsoft mess or to other issues that are troubling to those of us in the Linux sphere. The appropriately reviled SSSCA is the work of a liberal Democrat senator, Ernest Hollings, and will go nowhere because House Republicans won't let it. In the first U.S. v. Microsoft, the government rolled over and played dead following a private White House meeting between the Bills -- Gates and Clinton. Corruption -- to which a monopoly invariably leads; by definition it corrupts the free market -- knows no political philosophy.

The end game, of course, is as the end game always is in such situations: unhindered, Microsoft would, its monopoly not just established but enshrined, begin to get rid of its own people, and reduce the utility of its products, and charge more for them, because what other choice would we have? The monopolist, absent competition, has no reason to strive for excellence. Oops, innovation.

Again, Microsoft moving on the Internet has the potential of locking us out. The only reason they haven't done this yet is that their products are so shoddy and unsecure that they've failed -- the company has overreached. It is unlikely to make the same mistake next time.

All that is at stake is our freedom, in a real, down-to-earth, palpable sense of the word. Which is something that has meaning to all of us, none more than to those of a conservative bent, who did after all in their strict constructionist way go to so much trouble, lose so much treasure, and shed so much of their own blood in the course of inventing the idea of individual freedom 225 years ago.

If you haven't made your comment in U.S. v. Microsoft, you have three days to do so. The e-mail address is microsoft.atr@usdoj.gov while the fax numbers are 1-202-307-1454 and 1-202-616-9937. As Judge Bork noted, your comment's effectiveness is a function of how intelligently it is rendered. I've received copies of many of the comments sent by readers of this column, and I'm truly impressed. Now we need to multiply them by a hundred or so.

Time is running out, and freedom, whatever the flavor to which you cleave, is at stake.

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