First on the market doesn't always fit with fair play and the diktat of the law
When news broke in September that the European courts in Luxembourg would uphold the judgment that Microsoft had abused its dominant position in the market, the journalists I spoke to were initially unsure how to cover the story. The original judgment had been passed by the European Commission in 2004. Was the case still relevant? What did it mean for the average computer user?
What the European Commission had ruled was this: Microsoft used the fact that its operating system, Windows, runs on the vast majority of desktop computers, and quite a few servers, to gain an unfair advantage for its media-playing software Windows Media Player (WMP). It had ordered Microsoft not only to pay record fines (of around ?450m), but to release a version of Windows without the player bundled in, and to share information about its software with competitors.
The beauty of the programmable computer is that anyone, not just one company, can write code to run on it. But in today's networked computer environment, where the programs we run - be they web browsers, word processors or, indeed, media players - need to be able to communicate with one another, the first to reach market can often take all.
In the face of these so-called "network effects", the competition authorities have their work cut out maintaining a reasonably competitive environment. Without getting too deep into free-market economics, letting everyone have a go at writing good code leads to faster, more widespread innovation. Behind the scenes, competition drives software manufacturers to make their products more secure and more accessible.
In the specific case of Microsoft, its media-playing software and the European Commission, however, it's quite possible that the damage has already been done. The BBC, for example, has chosen to release the next generation of its digital on-demand services exclusively to Microsoft users.
Technology and the law are very, very different beasts. Step changes in technology take months, if not weeks, whereas proper legal certainty routinely takes years to emerge. Beyond time, legal judgments - despite their rarefied language - are altogether human things. They are shades of grey steeped in nuance and exception.
Digital technology deals in ones and zeros, black and white, and cannot truly reflect the law that controls it. Think of copyright protection systems such as DRM, which not only stop people copying content, but also stop legitimate uses of content such as altering it to make it more accessible to blind people, or allowing journalists and scholars to copy and paste sections for quotation.
It's not that it isn't quite correct to try to regulate technology using the law, or to code the law into technology - it's just not always terribly successful.
Post this article to
We want to encourage people to comment on our content and to exchange views with other readers and hope this will be done on a courteous basis. However, if you encounter posts which are offensive please let us know by emailing comments@newstatesman.co.uk and we will take swift action where necessary.
