A Letter to Bill

The pivotal question in the Microsoft case is the principle of the right to innovate. What principles will Bill defend?

By Lawrence Lessig [ lessig@pobox.com ]
The Standard

June 5, 2000

Dear Mr. Gates:

Your article in the May 15 issue of Time magazine, "The Case for Microsoft," is important and needed. You should write more. There are many who want to understand the principle that has led you to fight this case. They will understand it only from you. Your lawyers are excellent, your spokesmen passionate. But only you can talk about principle.

For this is the part of the case the commentators don't get. They are baffled that businessmen don't settle. But this is clearly more than business for you. You are fighting for a principle, and you should be respected for that.

At times, you have said that this principle is the right to innovate – the right of Microsoft to build innovative new technologies. You point to the last 25 years and to the explosion in personal computing produced in part by Microsoft's innovation. You defend that past and its promise for the future.

In this, you certainly are right. There can be no doubt that Microsoft has produced extraordinary innovation. You have created a platform upon which others can build; millions have built upon it. This is not an accident; it reflects good design. It is a measure of the excellence that Microsoft has made common.

But the question before Judge Jackson is not Microsoft's effect on innovation in general. The question is much more narrow. No one claims you have chilled all kinds of innovation. The charge is that you have chilled innovation of a certain type – that while you have encouraged and supported the innovation that has made your operating system more valuable to consumers, you have attacked and undermined innovations that might make the power of your OS less secure. The complaint is that you have tilted the platform to defend it against products that might threaten its dominance.

That's the nub of the government's case. The law does not require you turn and run when a new competitor walks onto the field. But it does police how a dominant firm responds. The law's aim is to preserve consumer choice in this competition, to trust consumers to choose the better of the products, and to encourage companies to compete for that choice.

But when a sufficiently powerful competitor interferes with the process of choice – by forcing others to narrow consumers' options, or by biasing the platform against competitive products – I had thought it clear that the law had a reason to respond. I had thought it obvious that the law should preserve the sovereignty of consumer choice.

You seem to think differently. You seem to believe that the right to innovate means the right to both produce more attractive products, and the right to undermine consumers' ability to choose products they might find more attractive than yours.

For example, the government uncovered an e-mail from you to your software developers that directed them to change the nature of Outlook so your handheld systems would run better than competing products using Outlook could.

Now I would be the first to argue that one should not overanalyze e-mail messages, and that it is fundamentally unfair to draw final conclusions from such ambiguous evidence. But whatever the e-mail meant, would you agree Microsoft has the right alleged? Would you agree with the principle? Is it your view that you should be free to use your power over a platform for whatever purpose you want, including the purpose of weakening innovations that might threaten you?

Your essay in Time was about the government's proposed breakup of Microsoft. I too have been a skeptic about a breakup, but not for the reasons you raise. And here again, I wonder: What is the principle behind your reasons?

The government's proposed breakup would separate Microsoft's applications from its operating system. It would create two companies – WinCo and AppCo – that would each compete in its respective field. AppCo would become just another applications developer. Just as Intuit builds applications separate from Microsoft and Palm builds applications separate from Microsoft, AppCo would have to build applications, such as Office, separate from the company that controlled the OS.

You have long argued – correctly, I believe – that the platform Microsoft's OS provides allows many independent software developers to innovate. In other words, the great advantage that a dominant platform provides is a consistent way for independent developers to innovate, without their controlling the OS.

But the essence of your complaints against the government's proposal is that Microsoft, after the breakup, would not be able to innovate in the way that these independent software developers have. That somehow innovation with Microsoft's products requires control over the OS, but other company's products do not.

How could this be? You say Microsoft "could not have created the Windows operating system if we had been prohibited from developing Microsoft Office as well." But how could Apple develop a rich and powerful operating system (for which you wrote the first version of Word) without controlling the development of Office? You say if Microsoft is broken up, new products like the PC Tablet "simply won't happen," because your OS and applications developers "will be unable to collaborate." But why can companies like Palm develop applications integrated into the operating system without controlling the Windows OS? How can Microsoft's Mac division develop integrated products for the Macintosh OS without owning the Mac OS? Why is it that every other firm can build on the Windows OS without owning Windows, but Microsoft's AppCo could not?

Maybe your point is that the government's proposed remedy would disadvantage AppCo relative to other independent developers. If that is true, that is certainly a criticism of the remedy. But if AppCo were as free as others to work with WinCo, then why would innovation be chilled? If others have innovated without controlling it all, why couldn't Microsoft?

Perhaps your point is deeper: That there is a special benefit Microsoft gets from being able to control the platform as well as the application, and that this special benefit would be lost if the two divisions were separate. But what is that special benefit, beyond the power to bias the platform against other innovations thought threatening? And is that power the principle you would defend?

If antitrust cases were decided upon the good that a defendant has done, then you would have prevailed long ago. You have without a doubt produced and inspired extraordinary innovation. You have built an industry upon a powerful platform.

And more important, beyond this commercial or geek-driven perspective, you personally have done extraordinary good for this country and the world. You are a man who has given $22 billion to charity. The work you and your wife have done to fight disease in the poorest regions of the world is unmatched in history. The lives you will save cannot be counted. Schindler had a list; you will have nations.

But antitrust law is not about whether a defendant is good or bad; it targets actions that weaken consumer choice and hence chill innovation. And so in your appeal to the American people, in your defense against the charges that have been made, how do you respond to that ideal? What is the principle that you would raise against it? Is it simply, as your lawyers insist, that you've done nothing to weaken consumer choice? That you've done nothing to make it harder to choose one product over another? That you've done nothing to interfere with the right of PC makers to offer different options on the desktop? That you did nothing to undermine innovations that might have weakened the dominance of Windows? Or is the principle that you should be free to innovate as you wish, even to innovate in a way that uses the power of your platform to disadvantage innovations that think about computing differently?

That is a principle that one could defend. But if it is your principle, you would be honorable if you simply said it and defended it. If you stepped away from your powerful PR team and from the wise filtering of your lawyers and simply said what you believe.

You are not a politician, Mr. Gates. You don't need to posture. You are free to say what you believe, independent of what the government believes it has proven. You are respected for that freedom. So say what you believe, Mr. Gates. What are the principles you would defend?

Lawrence Lessig [ http://www.thestandard.com/people/display/0,1157,1739,00.html ] is a professor at Harvard Law School and a fellow at Berlin's Wissenschaftskolleg.