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List of figures
Figure 1 Deadweight loss from monopoly 15
Figure 2 Monopolistic pring and perfect competition pricing 16
1.1 Background of the topic
With the raise of Microsoft as the largest operating system vendor, people still dispute about the business ethics problems that Microsoft had been or are still involved. When looking at the ethics of Microsoft business practices, below are the objectives that we will be aiming to achieve in this report.
1.2 Objective of report
1.2.1 To make clear the timeline of the ethical dispute that Microsoft was involved by historically stating the development of the events
1.2.2 To discuss some inappropriate business practices in ethics and also explain the reasons why they are classified as unethical
1.2.3 To introduce the characteristics of operating system market leading to market monopoly
1.2.4 To access the market monopoly with the assistance of the utilitarianism, rights, and justice ethics theories
1.2.5 To conclude and define the nature of the analyzed unethical business practices and access the legal charge that the companies faced
1.2.6 To offer recommendations based on the analysis in industries share the characteristics with operating system industry
2. Findings (Timeline of the major events)
In 1974, Bill Gates was enrolled in the Harvard University but he soon dropped out and started a software business with his friend, Paul Allen.
The two friends officially established Microsoft on April 4, 1975, with Gates as the CEO.
Microsoft entered the OS business in 1980 with its own version of Unix, called Xenix. However, it was DOS (Disk Operating System) that solidified the company’s dominance. In November 1980 to provide a version of the CP/M OS, which was set to be used in the upcoming IBM Personal Computer (IBM PC). For this deal, Microsoft purchased a CP/M clone called 86-DOS from Seattle Computer Products, branding it as MS-DOS.
With the rapid expansion of IBM computer, Microsoft eventually became the leading PC OS vendor.
In 1987, following Apple Computer’s development of a new operating system with intuitive graphics control, pull-down menus and other humanized hardware and software designs, Microsoft released the Windows operating systems with similar functions like that of Apple’s. The Windows system through updates and a network effect graduate dominated the PC operating system in term of controlling 90 percent market share, in term of Windows 95, Windows 98, Windows NT, XP.
On Dec. 15, 1994, the Internet browser known as Netscape Navigator 1.0 was launched, and the world–or at least the World Wide Web–changed with the click of a mouse. Within four months 75% of all Net users were peering at the Web through the window of the Netscape browser (Time.com 1998).
In August 1995, Microsoft releases Windows 95, which includes key technologies for connecting to the Internet, such as built-in support for dial-up networking and TCP/IP (Transmission Control Protocol/Internet Protocol) (Microsoft.com 2011). But the sale of the Internet Explorer was not good because of the powerful competitor, the Netscape, which had the first mover advantage. At the time Windows 95 was Microsoft’s newest version of operating system, though the windows system will carried the Internet Explorer user can remove it and install the Netscape if was their wishes.
On October 20, 1997, the Justice Department charged Microsoft with violating the terms of a 1995 consent decree which forbade Microsoft from requiring makers of personal computers to license one product to obtain another. The product in question was Internet Explorer. Justice charged that Microsoft was requiring PC makers to put IE on any PC that was sold with Windows 97 (People.engr.ncsu.edu 2008).
In 1998, Microsoft released its classic Windows 98 and bundled its flagship Internet Explorer (IE) web browser software with its Microsoft Windows, this bundling according to reports would impact the total performance of the customers’ computer.
On November 5, 1999 Bill Gates got to know that the Federal judge, Thomas Jackson had release the investigation results showing that Microsoft had been enjoying monopoly advantage in the operating system industry which had harmed the benefits of the end users and individual customers and also the interest of the competitors was also “crushed” as describe in the finding of facts by unfair competition techniques such as bundling the company’s own browser, Internet Explorer, into its monopoly product, the Windows series systems.
On April 3, 2000, the same U.S. District judge released another verdict, a 50-page opinion, judging with the assistance from the previous findings of facts concluding that “Microsoft’s anticompetitive actions trammeled the competitive process through which the computer software industry generally stimulates innovation and conduces the optimum benefit of consumers” (Money.cnn.com 2000) and among the possible remedies that Jackson will consider are imposing fines on Microsoft, restricting its conduct in the marketplace, and in the most extreme case, breaking up the company.
On June 7, 2000, U.S. District Judge Thomas Penfield Jackson decided that Microsoft could retain its operating systems for PCs, TV set-top boxes, handheld computers and other devices. But the company would be forced to create a separate firm for its other software and Web products–such as Outlook, Internet Explorer, BackOffice and the Microsoft Network (MSN) (News.cnet.com 2000).
A federal appeals court on Thursday overturned a lower court’s ruling that Microsoft be broken into two companies as a remedy for anticompetitive practices. The appeals court also devoted 20 pages of its 125-page opinion on the matter to the subject of “judicial misconduct,” saying that Judge Thomas Penfield Jackson, the U.S. District Court judge who ruled against Microsoft, violated ethical guidelines requiring judges to avoid public comments on pending cases and avoid the appearance of impropriety (Money.cnn.com 2001).
On November 2, 2001, Microsoft and Justice Department finally reached a settlement. Under the agreement, Microsoft must license its operating system to key computer manufacturers on uniform terms for five years. The agreement also bans retaliation against manufacturers electing to use non-Microsoft middleware software. Microsoft must disclose its middleware interfaces–data used by software developers to write Windows-compatible code–and it must disclose its server protocols so non-Microsoft server software can work with Windows on a PC the same way that Microsoft servers can (Pcworld.com 2001). But the previous demand to break up the company was no longer there.
3.1 Unethical records in the history of Microsoft
3.1.1 Plagiarizing designs from Apple
Based on what are described in the case study, the first major unethical record that Microsoft as a company had engaged is seen in year 1987 when the company started to sell the windows operating systems which were similar in number of functions and features with Apple’s earlier released operating system. These features included usage of mouse, pull-down menus, icons and other graphic designs. Let’s review some of these greatest inventions that Apple had created and popularize in its early personal computer models and many of these inventions are still in use widely by us. Apple has been the first computer maker to popularize all these ideas with great influence to the development of the PC industry: screens showing colors (instead of just black-and-white) 3½-inch floppy disks (instead of 5¼-inch, which are flimsy and less reliable CD-ROM disks (instead of just floppy disks, which hold less data) using a mouse (instead of just the keyboard’s arrow keys and TAB keys) using pictures (called icons) instead of just words pull-down menus (coming down from a menu bar, which is at the screen’s top) laser printers (instead of just dot-matrix printers, which print in an ugly way) desktop publishing (instead of word processing, which can’t handle beauty) pretty fonts (instead of typewriter-style fonts, which are monospaced and ugly) paint and draw programs (so you can create graphics easily, without math) (Secretguide.net 2002). While Apple Computer did not itself 100% led to the happening of all these wonderful creations and inventions, but the fact Apple had integrated all these technologies with its own later improvement and refinements practically transmitted that truth that the mixture and unique way of using and refining these inventions by Apple Computer in term of the successful release of the Apple personal computer models did own the rights to claim the ownership of its computer designs, that is why we come to the conclusion that Microsoft plagiarizing the computer operating system and hardware designs from Apple.
3.1.2 License dispute with Spyglass
In 1994, Microsoft was developing Internet related technologies to be included in Window 95, which was to be released in the summer of 1995, though it did asked different browser producers such as Netscape, and most of these browser producers refused to license their browser code as part of the new Windows system because Microsoft declined to pay per-copy royalties on the code (Page and Lopatka 2007, p.168). And at the end of 1994, Microsoft finally managed to license the Mosaic browser code from Spyglass. According to Bronwyn H. Hall and Nathan Rosenberg (2010, p.510), after the management of Spyglass licensed the browser, Microsoft increasingly devoted more programmers to it over time, repositioning itself as the firm to support other application development leading to the following fact that other licensees finally chose to get support from Microsoft rather than Spyglass. By copying and continuing to develop the program, Microsoft made its own internet browser and Spyglass was left alone. According to the complaint made later by the Spyglass’s chairman that “whenever you license technology to Microsoft, you have to understand that it can someday build it itself and drop it into the operating system and put you out of business”, we can see that the management of Spyglass was very unhappy with Microsoft’s unethical behaviors. As a licensee who has been granted a license, Microsoft’s copying the licenser’s program code and developed its own version actually was unfair or unethical practice. Within this event, it is the dishonesty that matters. Microsoft’s behavior showed that it was doing a dishonest practice or conduct is characterized by a lack of truth, honesty or trustworthiness, or is deceptive or implies a willful perversion of the truth to deceive, cheat, or defraud (Pacode.com 2010), thus it was unethical in our understanding it is Microsoft’s fault during the license dispute with Spyglass in the 1990s.
3.1.3 Integrating the IE into Windows systems
When time goes back to the era of Windows 95, it was a happy time for PC users. Microsoft had just delivered Windows 95, an incredibly vast improvement over windows 3.1 and DOS. Windows 95 finally brought PC users a crisp, clean, well thought out, user interface comparable to that of the Apple Macintosh (let’s temporarily put the Microsoft’s previous charge of plagiarizing designs from Apple aside first) while also providing full backwards compatibility with previous versions of DOS and Windows. Web browsers at the time were commercial products that people paid for (Toastytech.com 2009). As a matter of fact, by the end of 1995, over 80% of users who browsed the internet used Netscape (Bigbearcc.org 2011). According to the case study, in the Windows 98 operating system, instead of automatically installing the Internet Explorer, Windows did go further by integrating the IE into the operating system so that it was extremely difficult for a user even to remove the IE which had previously been a standalone browsing software, and also such bundling made the Windows 98 running more slowly than it was before the bundling of the IE in the new operating system, Windows 98. The integration of the IE was unfair to both the customers and the competitors because of its nature of anti competitiveness.
In the shoes of personal computer users who used the Windows 98 operating system, they were to some extent deprived of the moral right, free of choice, to use the Internet Explorer. Moral rights are justified by moral standards that most people acknowledge, but which are not necessarily codified in law (Curnutt 2001, p.30). Based on the study by W. Michael Hoffman, Robert Frederick and Mark S. Schwartz (2001), everyone has a right to exercise free choice in service of his or her interests, and what is more this right can be used to discover other rights. Because they had already paid for the whole system which was inclusive of the R&D cost of the Internet Explorer, buying another chargeable internet browser would indirectly means a double charge for a single service. Also because the automatic integration of the Internet Explorer in the Windows 98 which had been proved as slowing down the system, to installer a new third party internet browser could make the computer much less efficient and less performing. In another word, consumers would have no choice but to accept this bundling if they would not want to bother.
3.2 Ethics analysis of monopoly market
3.2.1 Characteristics of operating system market leading to market monopoly
22.214.171.124 Timing is important – advancement of first mover strategy
Though in the IT industry, constant innovations and rapid changes happen without people’s expectation could make a lot of existing inventions and technologies obsolete, in the operating systems, such change seems to be in a much reduced frequency. As Bill Gates (1995) mentioned in his boos when he talked about IBM PC to conclude the importance of timing to be a first move that “equilibrium was indeterminate at an early stage, but IBM got there and set the standard, later equilibrium was far harder to change, timing was very important.” Many later exposed internal documents, many are business sensitive, have confirmed the advantages of timing in the industry and it is IBM PC rapid expansion in the industry which set the later well established and hard-to-change industrial equilibrium or standards that contributed to Microsoft’s monopolistic and absolute leadership in the operating system industry.
126.96.36.199 Layer construction of the PC software systems
Before Bill Gates’ innovative cremation of BASIC, which is short for Beginner’s All-purposive Symbolic Instruction Code, software needed to be built based on the machine code which was inconvenient, time consuming and inhuman. The BASIC as a program allowed programmers to develop software based on the BASIC by using the well defined English Instructions in the system. One most obvious benefit of using an operating system to build software is to reduce the overall work load as the operating system has already done the communication work with the hardware of the computer in a machine language. But since independent software would need to develop based on the particular operating systems, these layered and clearly divided functions create reliance relations between the operating system and the applications developed by independent developers. Such reliance could be seem from our daily use of computer when incompatibility could happen when an Apple laptop could not run the software such as games which are developed specially for Windows system which is not installed in Apple’s computer. When the independent developers are forced to make a choice to decide which system to be used, a network effect would happen. Below we will see how a network effect functions and how it pushed Microsoft to the market monopolistic position that it holds for such a long time.
188.8.131.52 Proprietary API and the easy forming of the network effect
As known in the computer software industry, in the operating system market, one important concept is API, applications programming interface. API is made up of codes that applications use to “command” the computers to carry out its functions. This indicates that API is the direct base that any add-on applications could be developed upon. As proposed by (Bresnahan 2004) the interface standard layer allows developers to interact with it through an Applications Programming Interface (“API”) and connects to users through a User Interface (“UI”). Any layer that has both wide usage and an API is named as a “platform”, common platform include Windows platform, Java platform and browser platform. Because the Windows API is totally proprietary to Microsoft, the company would have the final say on what software would be compatible with the windows system.
Network effects arise when a product becomes more valuable as more people use it. Telephones and fax machines provide classic example. When a single company controls the underlying standard, the outcome may be a “winner-take-all” outcome. Economic analyses and popular treatments of the Microsoft case have highlighted network effects (Evans 2002, p.196). Regarding the case of Microsoft, the network effect came from the desire of the customers to choose operating systems that could support many computer applications and the desire of software companies to design applications for widely distributed operating systems (Low & Norton 2003, p.123). As Microsoft’s operating system take the first move advantage and become market leader in term of market share, more and more customers would choose the windows system. Similar case could also happen to the independent software developers who would choose the Windows system to build applications rather than other operating systems.
3.2.2 Monopoly market ethics analysis using utilitarianism
184.108.40.206 Theoretical review of utilitarianism ethics
Utilitarianism is considered as the most well-known philosophical definition of moral rules which people tend to put forward as a rule. By definition, utilitarianism is such a rule that if an only if universal obedience to it would pomote the greatest happiness (Gert 2005, p.121). The expression of the greatest happiness is usually stated as “the greatest good for the greatest number”. And in a negative utilitarian definition, a rule should be a moral rule if the violation of it would lead to the bad results.
220.127.116.11 Market monopoly and its restrictions on total unitility
Figure 1 Deadweight loss from monopoly
Source: Taylor, J. B. and Weerapana, A. 2009, Principles of Microeconomics. Boston, MA: Houghton Mifflin Company. p.285
In order to measure the damage and harmfulness that monopolies could bring to the society in term of loss of total utility and welfare for the society. Using the economic model in the figure, we can observe that equilibrium in the competitive industry is where the market supply curve crosses the market demand curve, in comparison the margin that the quantity produced by the monopolist is much smaller than that made by the competitive markets. And also the monopoly supplier would charge a higher price but provide with smaller number of products. If we calculate the utility by the quantity of the products provided, competitive market which also price the products in a lower pricing level would certainly bring more utility to the society. In the case of Microsoft’s monopoly position, the long time charged high price and relatively lower sale (compared to the theoretically higher supply in the competitive market) would definitely reduce the overall social output, in other words, the total utility created.
3.2.3 Monopoly market ethics analysis using justice
18.104.22.168 Theoretical review of ethics of justice
Justice ethics moral standards based on the idea of justice include the concept of fairness. Together, these ideas contribute to three fundamental bases for moral behavior: Distributive justice, retributive justice, and compensatory justice. Distributive justice concerns with the “fair” distribution of society’s benefits and burdens; Retributive justice is concerned with the offering of punishments and penalties that are just and Compensatory justice supports the idea of compensating people for what they lose when they are wronged by other individuals or by society (including government) (McNabb 2005, p.48). One of the distributive justice theories that would be used in the below case discussion is the capitalist justice which claims that benefits and resources should be distributed according to the value of the contribution that one has made to the society, a group or a task (Velasquez 2006, p.110).
22.214.171.124 Market monopoly and its restrictions on ethics of justice
Figure 2 Monopolistic pring and perfect competition pricing
Source: George, K. D., Joll, C. and Lynk, E. L. Industrial organisation: competition, growth and structural change. 4th edn, New York: Routledge, p.323
Monopoly prices were unjust when they were higher than the prices that would have prevailed under competition. With the model shown in the figure above, imagin that the competitive firms make up an industry supply curve that is the same as the monopolist’s marginal cost curve. The competitive price and quantity are given by the intersection of the supply curve and the demand curve. As indicated in the model, the monopolistic price would be higher than the competitive price. Not only the social welfare will be lost due to the high monopolistic price in term of deadweight loss from the monoply market, but also the monopoly maket vialotes the social justice because the consumers pay higher cost to obtain the same products.
3.2.4 Monopoly market ethics analysis using rights
126.96.36.199 Theoretical review of ethics of rights
In general, a right is an individual’s entitlement to something. A person has a right when that person is entitled to act in a certain way or is entitled to have others act in a certain way. Entitlement could derive from legal systems or other systems. When entitlement derives from a system of moral standards independently of any particular legal system and these rights are known as moral rights or human rights (Hoogstraten 2001, p.122). Moral rights could be classified in term of negative rights or positive rights. Based on the view of Bernard Lo (2009) negative rights are claims to be left alone to be free from unwanted interference or intrusions and positive or affirmative rights on the other hand are claims to receive something or act in a certain way. Also negative rights are usually evaluated as being attached with more moral weight than the positive ones.
188.8.131.52 Market monopoly and its restriction on negative rights
Negative rights serve to protect the individual and his property from coercion and violence. Microsoft’s market monopoly position damaged the right of the competitors as well as that of the consumers. In the shoes of the competitors, other operating software system developer or any other software service provider that created threat to the monopoly market position of Microsoft are restricted in term of free entry barriers. Monopoly involves a single seller, other sellers are not free to enter the market; and in the shoes of the customers, they are also restricted in having free of choice and bargaining power to bring down the prices. The greatest harm to consumers by the Microsoft monopoly is price gouging – an issue not even has been addressed by the antitrust trial (Spaulding 2000). Even today, customers and end users still have to accept the price set by Microsoft because of the market monopoly in the operating system industry.
4.1 Justification of Microsoft’s charge of violation against the antitrust laws
In my view, the government should have sued Microsoft for its violation of the antitrust laws. According to the case study, since the version of windows 98, instead of automatically installing the Internet Explorer, Windows did go further by integrating the IE into the operating system so that it was extremely difficult for a user even to remove the IE which had previously been a standalone browsing software, and also such bundling made the Windows 98 running more slowly than it was before the bundling of the IE in the new operating system, Windows 98. The integration of the IE was unfair to both the customers and the competitors because of its nature of anti competitiveness. Hence, in my view the government should have sued Microsoft for its violation of the antitrust laws and regulate the market.
4.2 Justification of Judge Jackson’s order to divide Microsoft into two
Judge Jackson’s order that Microsoft should be broken into two individual companies is fair to Microsoft. As analyzed above, since Microsoft’s operating system took the first move advantage and become market leader in term of market share, more and more customers would choose the windows system. Similar case could also happen to the independent software developers who would choose the Windows system to build applications rather than other operating systems. If Microsoft continue to integrate other applications into the Windows system, it would not be fair to the other software developers. What is more, in the case of Microsoft’s monopoly position, the long time charged high price and relatively lower sale (compared to the theoretically higher supply in the competitive market) would definitely reduce the overall social output, in other words, the total utility created. In this point, Judge Jackson’s order that Microsoft should be broken into two individual companies is fair to Microsoft because of the unfairness and lowered total utility that it had caused.
4.3 Regarding Judge Kollar-Kotelly’s November 1, 2003 decision
Judge Kollar-Kotelly’s November 1, 2003 decision that Microsoft must license its operating system to key computer manufacturers on uniform terms for five years under a settlement was not fair. Though the agreement also stops retaliation against manufacturers electing to use non-Microsoft middleware software, and Microsoft need to make openly accessible of its middleware interfaces–data used by software developers to write Windows-compatible code–and it must disclose its server protocols (Pcworld.com 2001), but since we have justify that Judge Jackson’s order that Microsoft should be broken into two individual companies is fair to Microsoft, the Judge Kollar-Kotelly’s November 1, 2003 decision which did not include the extreme way to separate the company would not be able to deal with the difficulties, challenges and unfair competition that market monopoly position that Microsoft holds could cause.
4.4 April 2004 decision made by the European Commission
Similarly, the April 2004 decision made by the European Commission was also fair to Microsoft based on its bundling strategy.
5.1 Who are harmed by monopoly of Microsoft
Those who are harmed by monopoly of Microsoft include: competitors (such as Apple), potential competitors (such as Java), independent software developer (such as Netscape) and the customers. As examples have all been found in the competitors, potential competitors and independent software developer, they are harmed by the monopoly of Microsoft. And also based on the previous discussion, the long time charged high price and relatively lower sale (compared to the theoretically higher supply in the competitive market) would definitely reduce the overall social output, Microsoft’s monopolistic position has actually harmed the customers’ benefits and interests.
5.2 Public policies to better manage monopoly markets
5.2.1 Provide assistance to the medium sized Enterprise (MNEs) in the similar industries
Small and Medium sized Enterprise (SME) development is crucial for the creation and introduction of competitors into the monopoly industries, though innovation could happen by the individual talents who come up with new ideas, but compared to the market leader who has the absolute power and resource advantage over the small raising competitors, the governments and relevant public departments should offer assistance in term of financial help and also policy preference and stimulus policies to encourage their development.
5.2.2 Reduce the lawsuit handling time
While Small and Medium sized Enterprise (SME) could come up with new technologies and design, their idea could be copied by Microsoft, but as we can see, any lawsuit in the industry could last for a long time during which the damage of Small and Medium sized Enterprise (SME)’s interest would be substantial and expanded, one solution that the public sector could do is to reduce the lawsuit handling time by investing in the relative department and speed up the handling process. This would give the Small and Medium sized Enterprise (SME) chance to fight against the leading companies’ illegal behaviors.
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