Triumph of Envy at EU Court

Tibor R. Machan

The thirteen member European Court of First Instance has delivered its decision reaffirming the judgment against Microsoft Corporation, claiming that the company has been wielding excessive market power by way of its addition of a digital media player to Windows, something the court claimed undermined an previously dominant firm, Real Networks. This judgment will cost Microsoft $689,400,000.00 in fines as well as having to allow competitors to make use of Microsoft’s confidential computer code.

Just the other day I was looking through a magazine I get, Liberty, in which one of the articles is titled “Why I dislike Europeans.” I was thinking that this is a silly title since Europeans are a diverse lot and, moreover, why would it be important why someone dislikes them all. But when these kinds of news come out of the old continent, I, originally from there, too am tempted to develop a dislike for Europeans. Of course, this is only one of their courts but as with courts everywhere, this one probably is giving expression to a widespread attitude, in this case of envy toward Microsoft.

The act of bundling simply should not be any kind of crime. It is their product and they have the right to bundle and to keep the way they do it secret. So long as this is disclosed to potential customers, there is not a thing morally—and should not be legally—wrong with it. Bundling is, after all, a practice of nearly all industries that produce goods and services for sale—cars come with radios installed that would cost a fortune to remove and replace with some other radio of one’s liking. Prominent actors who star in movies ask for others they want to have in the project, directors, actors, and so forth. The list of bundling could go on endlessly.

Envy seems like a far better explanation for how the European Court ruled in this case. Microsoft’s success just must drive these people to distraction. Given the history of how most people in Europe had gained their wealth and economic dominance, namely, through politically and militarily backed conquest of and expropriation of resources from millions of subjects—the real exploitation of the feudal, not capitalist, era that gave credibility to Karl Marx’s theory of exploitation—it is perhaps understandable that many in Europe and elsewhere around the globe believe all wealth comes from malfeasance.

Massive fortunes used to be gained through looting, thieving, and rank oppression, including especially the conscription of labor. So the idea that a company like Microsoft could obtain its market success honestly, mainly through ingenuity and hard work, simply hasn’t gained a foothold. The achievement of wealth through market processes is relatively new in human history and only taken to be the norm by most people in the United States of America and a few other places.

Still, one would expect the erudite members of a prominent court to have shed the prejudice that it takes to persecute a firm like Microsoft but it appears that this is a vein hope just yet. I haven’t checked, but I am pretty sure most editorials in Europe welcome cutting Microsoft down to size. Few, I bet, are taking the court’s ruling as an opportunity to teach some lessons in free market economics, the right to private property, freedom of trade. Instead most probably share Harvard University law professor Andrew I. Gavil’s not surprising academic opinion that the court’s “decision is a strong endorsement for what in the United States would be considered aggressive policy on dominant firms,” one “that’s going to continue to play out in other kinds of cases.”

I am sure Microsoft doesn’t need my help to carry out the practical, legal aspects of this battle but given Bill Gate’s political philosophy—revealed in his obstinate support of the estate tax and other policies coming from the Left—the philosophical case for his company could probably use some shoring up. Perhaps he ought to familiarize himself with Ayn Rand’s world-famous novel, Atlas Shrugged, the 50th anniversary of the publication of which is being celebrated this year. It could help him understand the motivation behind a court ruling that is punishing him for being a success in the market place.