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Date:      Thu, 18 Nov 1999 11:43:08 -0800
From:      "David Schwartz" <davids@webmaster.com>
To:        "Jonathon McKitrick" <jcm@dogma.freebsd-uk.eu.org>
Cc:        <chat@freebsd.org>
Subject:   RE: Judge: "Gates Was Main Culprit"
Message-ID:  <000001bf31fd$24050960$021d85d1@youwant.to>
In-Reply-To: <Pine.BSF.4.02A.9911181852511.4274-100000@dogma.freebsd-uk.eu.org>

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> On Thu, 18 Nov 1999, David Schwartz wrote:
>
> >	It's not an example of the adoption of a lesser technology
> unless OS/2
> >actually _is_ superior. Since it only "may have been", this is
> not a clear
> >example. Read over the full thread of what I said (cited above).
> >
> >	And this is really only logical. If OS/2 had been clearly
> superior, many
> >OEMs would have refused Microsoft's terms, preferring to sell only the
> >superior technology to the inferior one. Wouldn't you think?
> >
> So really, then, all this debating over whether Unix or Windows is
> superior is academic, since it is a matter of personal opinion,
> right?
>
> All that really remains of substance is whether M$ acted illegally to
> reserve its market status.

	Yes, but if lock in (and similar affects) are nonexistent, then it's
impossible for Microsoft to have acted illegally to reserve its market
status.

	It's like asking if I stole an apple to make it rain. If humans cannot
affect whether it rains or not by individual action, then no matter what I
did with an apple, I could not have stolen one to make it rain. And the fact
that it is raining cannot be used as evidence to show that I stole the
apple.

	On the other hand, if there's evidence that humans can control the rain,
and more damning, evidence that apple stealing can cause it, things change
dramatically. Now the claim is coherent, and the evidence that it is raining
can be used to show I stole the apple. And the fact that there's no other
explanation for the rain is corroborating.

	So the question, "Can powerful marketing, tying schemes, tipping effects,
and monopoly leverage create lock in or bring about suboptimal market
results?" is completely relevant.

	Now, you might say, something like "Well, even if the antitrust laws are
wrong and based upon false premises, nevertheless, they are law and so
should be followed unless they are repealed. So even if Microsoft's actions
did not affect its market share at all, it should still be punished for
breaking the law." But this forgets entirely that an antitrust proceeding
requires a positive showing of consumer harm.

	And not just any sort of harm -- Microsoft's release of NT4.0SP6 had a
minor winsock bug. And that bug caused some consumer harm, of course. But
this is not monopoly harm. Monopoly harm has to meet certain other
standards, specifically, it has to be as the result of attempts at monopoly
leverage and so on.

	So again, if there's no evidence that monopoly leverage can cause consumer
harm (and there is none), the case against Microsoft collapses. So far, I've
only dealt thoroughly with one claim of how monoply leverage can cause
consumer harm (lock in), and I've argued that there is not one _clear_ case
of it.

	But I guess I ignored the big picture of why that is relevant. So I hope
this post fills that void.

	DS



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