Jonathan Rauch is a senior writer for National Journal and a writer-in-residence at the Brookings Institution.
Day 36 of the Trial
At the front of the courtroom, a white-haired, professorial man is holding forth. Not surprising, since he is a professor of economics at MIT. His name is Franklin M. Fisher, and he has the honor of being the government’s cleanup hitter: the last to testify in the Justice Department’s roster of only 12 witnesses (both sides are limited to that number). The imperious professor sits among stacks of six inch binders edged with thousands of sparkling tabs. Thus ensconced, he loftily treats Microsoft’s attorney du jour, Michael Lacovara, like an errant student. Lacovara, in fact, does seem young enough to be Fisher’s student, or even his grandstudent. He has the cool, technocratic manner of a coroner making incisions in a corpse.
This is the second day of Fisher’s testimony, and a humdinger it is not. By the government’s own admission, Fisher is mostly summarizing the case rather than extending it or adding new data. After lunch, at the spin session where the opposing sides stand in front of the federal courthouse making statements to the press, Microsoft’s spokesman, Mark Murray, calls Fisher an “echo chamber” for the government. “This witness has brought absolutely no new information to this case,” he says.
Now, after lunch, Lacovara is relentlessly peppering Fisher with technical questions, mostly to elicit “I don’t know”s (thus showing that Fisher is no expert programmer, which Fisher never claimed to be) and to obtain, for the record, admissions that Fisher never analyzed this or that (“I didn’t need to,” Fisher replies as if by rote, or “it can’t be calculated”). The mind fades out, then fades in long enough to hear “NSP is not a cross-platform, is it?” Fade out again, then “increase any of the traffic to any of the ISPs with which Microsoft had agreements.” Judge Thomas Penfield Jackson’s eyelids, weighted down with the whole burden of his lunch, drift inexorably lower. He rubs his eyes, pinches the bridge of his nose, but still the eyes close. The head rolls, the posture slumps. Amused, I lean over to the reporter next to me to point out the judge’s plight. The reporter is dozing.
Convinced that the highly paid attorney and the highly paid witness are ideally matched to stymie each other, I begin to thumb Fisher’s inch thick prepared testimony. It contains surprisingly little by way of pricing analysis or quantitative measurement, which are perhaps the sorts of things one might hope for from an MIT economist in an antitrust case. It is full of abstract economics (“Suppose, alternatively, that while A is used to make B, it is not used in fixed proportions”).
One does, however, soon come to the gist of it. “By ensuring that virtually all new users receive Microsoft’s browser either with their PC or from their ISP or both, Microsoft effectively excludes Netscape and other browser competitors from the market, limiting them to a declining base of existing users,” argues Fisher. “It is probable that, in the absence of intervention, Microsoft will obtain monopoly power in the market for Internet browsers.” This may be true, but it hasn’t happened yet–far from it–and even if it did, the result might do no harm to consumers, given the speed at which things change in Internetland. Until now, Microsoft’s pressure on Netscape has unarguably made consumers better off by driving down the cost of Internet browsers (to nothing). That, says the Justice Department, is the problem.
Justice may be right. But who knows? Certainly not a gaggle of lawyers and a federal judge. The Microsoft trial is plodding and colorless, whereas that other big trial–the one that began yesterday in the U.S. Senate–is spectacular. But in its way the Microsoft trial is more peculiar. Nowhere but in America do judges and lawyers, in hermetically sealed courtrooms, decide whether a browser is properly part of an operating system.
On the stand, Lacovara is pressing Fisher. If a Microsoft executive speaks (as government witnesses have testified) of his hope to “cut off Netscape’s air supply,” is that an anti-competitive statement, or is it rather a hypercompetitive statement? It depends, retorts Fisher. If a monopolist says it, it’s anti-competitive and therefore illegal. Hmm, I think. But exactly the same evidence–that Microsoft was competing as hard as it could–may just as easily be evidence that the company was running scared in a ferociously competitive market. So Microsoft’s behavior proves that the company either is or is not a monopoly, depending on whether you think the company is a monopoly.
Next week, Fisher will finish, and Microsoft will call its first witness: an economist who will switch the gestalt to read Fisher’s duck as Microsoft’s rabbit. The antitrust law is far too vague to provide clear guidance; the judge will simply go with his gut. Leaving the courtroom, I muse that the results might be more rational all around if the 100 senators up the road decided the Microsoft case and Jackson ruled on President Clinton.
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