[Congressional Record Volume 144, Number 122 (Tuesday, September 15, 1998)]
[Extensions of Remarks]
[Pages E1727-E1728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          MICROSOFT LITIGATION

                                 ______
                                 

                           HON. TOM CAMPBELL

                             of california

                    in the house of representatives

                      Tuesday, September 15, 1998

  Mr. CAMPBELL. Mr. Speaker, in recent months, I, along with several 
other members of Congress, have been visited by representatives of 
Microsoft, and high technology companies allied with and against 
Microsoft. The topic of the discussions has been the pending U.S. 
Department of Justice lawsuit against Microsoft. It has been my 
practice never to attempt to influence a matter in litigation, and I 
will follow that practice in this case. However, I do feel compelled to 
state that, whether the case that the Department has alleged ultimately 
proves successful in court or not, the Department of Justice in my view 
is on very solid antitrust ground in the theories it has advanced. I 
make that conclusion as a Professor of Law at Stanford University, as a 
former Director of the Bureau of Competition, the antitrust enforcement 
arm of the Federal Trade Commission, as a former member of the Council 
of the Antitrust Section of the American Bar Association, and as a 
former expert witness in several antitrust matters.
  The Department's case is brought under a well established antitrust 
doctrine known as tying. A firm with a large share of one market can 
choose to utilize its market power to compel consumers to purchase 
another product that would be more properly viewed as in a separate 
market. Such cases are easily 80 years old in antitrust. Numerous 
decisions of the United States Courts of Appeals and the United States 
Supreme Court have dealt with this doctrine. It is absolutely safe to 
conclude that the tying of the sale of one product to the purchase of 
another, conduct compelled by a firm with market power, is a garden 
variety violation of the antitrust laws. Indeed, it is a per se 
violation of the antitrust laws. (I hasten to add that, as an academic, 
I have spoken and written against the use of per se theory in many 
areas of antitrust; preferring instead a

[[Page E1728]]

more careful analysis of the comparative benefits and harms to 
consumers from practices too readily condemned under the per se rubric. 
I would urge such a comparison here.) But what remains beyond 
reasonable disagreement is that the Department of Justice has premised 
its case on conservative antitrust principles, long upheld by the 
courts. Whether the Department can prove that the facts involved in 
Microsoft's marketing practices meet the legal standard for illegal 
tying, of course, remains to be proven in court.
  The Department has also intimated that its case might be premised on 
a monopolization count: namely, that Microsoft's actions have had the 
purpose, and likely effect, of deterring the development of a new 
technology which, if allowed to develop, would render obsolete the very 
product, operating systems software, in which Microsoft currently has a 
dominant market position. Once again, such a theory is well known in 
antitrust, with examples from many industries from newspapers to 
petroleum, where companies have been taken to task under the antitrust 
laws for deterring customers from going to an alternative product.
  I offer the foregoing statement at the request of several 
constituents who have asked my view on the matter. I do not anticipate 
any legislation on this matter, nor are my foregoing comments to be 
taken as any indication as to how I might vote should a legislative 
matter be presented that involves the kind of practices alleged here.

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