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After all of the public sturm and drang, the Department of Justice’s antitrust suit against Microsoft in the end didn’t threaten the company’s monopoly. After proving that the company’s Windows operating system had 95 percent of the market for personal computers, the government asked that operating system business be spun off from the rest of the company. But the government recently abandoned that request, and on Sept. 28, the federal judge overseeing the case strongly urged the parties to settle the case quickly. Lost in the tempest of litigation is the fact that the government had and has the power to erode Microsoft’s monopoly — without resorting to antitrust laws — by buying and promoting competing products. That is, the government could use its power as a large consumer of products and services to promote competition. This is especially so since the federal government is perhaps the single largest customer for Microsoft Windows. THE PURCHASE POWER Theoretically, the government could wield this power by using competing products. There were once competing proprietary PC operating systems — IBM sold one, for instance — but they vanished from the market years ago. But there are still noncommercial operating systems alternatives. These are generally distributed without charge as “open source” software — like the much vaunted Linux system. The hope of the open source movement is that programmers will download the free and freely accessible software code that computers can read and run. The programmers will then improve the code and make the improvements available to the world. The open source licensing agreements that come with such software typically require improvements to be made available to all others for free — making for an ever-evolving, ever-improving operating system, available to anyone who wants to see or use it. (In contrast, the computer code of a proprietary operating system, like Windows, is kept secret by the corporation that owns it.) The federal government, with its huge base of personal computers, could make the open source Linux a viable contender to Windows simply by licensing and using it. But this is easier said than done. Indeed, Linux appears to have only a miniscule share of the federal personal computer market. There are reasons for this. First and foremost is the fact that Microsoft Windows is a strong brand. Even if Windows were not technically the best operating system, its ubiquity and brand name make it difficult for other operating systems to command attention from federal agencies. Pity the poor federal manager who installs Linux on a hundred computers only to have them crash. His job might be on the line — but probably would not be if the crash had happened with Windows. Along the same lines, Windows enjoys the advantage that the government prefers to use the same operating system in all agencies, so that workers don’t have to be retrained when they change offices or departments. Security (especially now) is another serious concern. The computer code for open source software is public. This allows would-be hackers to obtain copies and look for loopholes to exploit. Although the same flaws might exist in Windows, so the argument goes, only those who have worked for Microsoft know about them. Third is the possibility that Windows may actually be a better operating system than Linux. A December 2000 headline in the Los Angeles Times reads, “Linux’s Minuses Outweigh Pluses in 14-Day Trial.” The article underscores the fact that Windows is considered easier for casual computer users. Microsoft has legions of well-paid computer programmers who focus on making Windows a consumer-friendly operating system. Linux, on the other hand, has evolved from the work of volunteer programmers who like the challenge of writing good code, but may not be as concerned with candy-coating their handiwork. There is also an argument that the government has a poor track record in picking winners in technology. For example, critics have for years opposed the research grants of the Advanced Technology Program of the Department of Commerce by arguing that the government should not have an industrial policy that selects winners and losers. The government, they argue, has no business directly interfering in the marketplace. Under this view, the antitrust laws are the sole and exclusive expression of federal competitive policy. Naturally, there are rebuttals to these arguments, and reasons that the government should promote Linux. Competition traditionally leads to better products at lower prices. As long as Microsoft has a monopoly in operating systems, it can charge the government more than it could if there were alternatives. A viable Linux operating system would trigger such competition, thus benefiting the government and consumers alike. The argument that the government shouldn’t pick winners is insubstantial — it picks winners all the time, and its massive buying power routinely makes or breaks companies. Besides, there are any number of federal programs designed to subsidize a favored activity or to promote one technology over another. Congress has declared free broadcast television to be in the public interest, and requires its programs to be carried by cable television systems. Connecting schools to the Internet has been deemed in the public interest and is subsidized by a charge on telephone subscribers. The networks and Internet providers thus get an edge from the government they otherwise wouldn’t have had. And, of course, by using Windows, the government helps entrench Microsoft’s system as the winner. Security also is not a serious issue on Linux — the National Security Agency in April awarded a contract to convert Linux into a secure operating system. OPENING THE BOTTLENECK An even more compelling reason for the government to promote open source operating systems is that PC operating systems are bottleneck facilities in the information economy. The PC is the gateway to the Internet and to the Information Age. Historically, it has been a mistake to allow a single company to control such bottlenecks. So if the government can directly foster competition through its purchasing power, goes the argument, it should. Moreover, experience with networked computer technology suggests that open systems are better than proprietary ones. The Internet is an open technology. It was developed on open standards set by the federal government for 20 years before being turned over to the public sector in the early 1990s. And today, the Internet still is governed by open technical standards. The open source concept does have support in government. In an October 2000 report, the President’s Information Technology Advisory Committee recommended that the “federal government should aggressively encourage the development of open source software for high end computing.” Of course, the needs of high-end computers are different from those of personal computers. Nonetheless, the committee’s recommendation is an endorsement that the open source concept is viable. Additionally, governments from other countries worry about Microsoft’s dominance — and are taking direct action to stop it. China (a country with plenty of programmers but short on dollars) is one example. The New York Times has reported, “[The Chinese] are concerned that the country is growing overly dependent on the Windows operating system, which controls computers running everything from banks to President Jiang Zemin’s e-mail box. But the Chinese government, itself a master at monopoly, is taking its case against Microsoft not to the courtroom but to the marketplace, albeit with a bit of administrative fiat. It is backing the Linux operating system … .” Given all this, it’s not surprising that Microsoft sees a threat in Linux and open source software. As Microsoft Vice President Craig Mundie said in a speech earlier this year, open source software would lead to “a strong possibility of unhealthy ‘forking’ of a code base, resulting in the development of multiple incompatible versions of programs, weakened interoperability, product instability, and hindering businesses’ ability to strategically plan for the future.” He also claimed that Linux contains “inherent security risks.” But his concerns are not purely technical. According to Mundie, open source software “puts at risk the continued vitality of the independent software sector.” What Mundie means is that open source puts at risk Microsoft’s bottom line. The government clearly could do more outside the courts to promote open source operating systems as an alternative to Windows. Whether it should and whether such promotion would be effective is less clear. But that’s a question that deserves more attention than it has received. James H. Johnston, a Washington, D.C.-based lawyer, may be contacted at [email protected]

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