NCPA - National Center for Policy Analysis

Microsoft Decision Rests On Opinions, Not Facts

March 8, 2001

The judge in Microsoft's antitrust trial reached many conclusions that are clearly erroneous, blatantly contradictory or technologically garbled, says Hudson Institute economist Alan Reynolds. In a new study, Reynolds points out that half of federal Judge Thomas Penfield Jackson's 412 "Findings of Fact" were unmentioned in the judge's legal conclusions, which makes them irrelevant. Furthermore,

  • Jackson's finding of monopoly rests on a government exhibit claiming Microsoft's market share is 95 percent and rising; but that figure was from a 1996 projection that was doctored to exclude Apple and network computers.
  • Microsoft's share was then boosted another 21 percentage points by including Windows NT workstations while arbitrarily excluding popular workstations from Sun Microsystems and Silicon Graphics.
  • Even lesser errors of fact led to erroneous conclusions, with Jackson laboring under the false impression that a few computer manufacturers account for more than 90 percent of all PC sales, that AOL has only 16 million subscribers, that a browser uses-up "memory on the hard drive," etc.

Other "facts" are just opinions about technology, and many are contradictory, says Reynolds:

  • Microsoft is condemned for charging nothing for Internet Explorer ("predation"), yet also for forcing us to pay for it ("tying").
  • Network computers are a serious threat to the Windows PC, yet too trivial to bother even counting as a competitor.
  • The world is said to be gravitating toward Internet-based applications, yet the sheer number of software titles on CD-Rom is said to give Windows an inexorable advantage.

What the facts do clearly reveal, concludes Reynolds, is that there was no intent by Microsoft to monopolize browsers, for example, and that there was no serious possibility of its doing so.

Source: Alan Reynolds, "The Microsoft Appeal: Judge Jackson's Findings of Fact Revisited," Hudson Institute, forthcoming 2001.

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