While last year’s Platformonomics Holiday Gift Guide brought seasonal joy to vast swathes of humanity, this year’s holiday recommendation has a very specific audience: Googlers.
To my friends at Google:
You did a great job over the years keeping your email boring and mostly devoid of colorful yet easily cherrypicked soundbites. But your antitrust reckoning has nonetheless arrived. Google’s lawyers naturally rejected the suit as “dubious” and “deeply flawed”. It is fun to watch you in that plucky and defiant early stage where you still believe the litigation will be a hyperrational, truth-seeking exercise (just like your decisions to A/B test 41 different shades of blue or kill Google Reader). Enjoy that phase, because history suggests it gets worse. Being the defendant in a Federal antitrust suit can be a long, unpleasant, and demoralizing experience.
The problem is antitrust law resides somewhere between fuzzy (the Sherman Act is less than half the length of this post) and totally subjective. Not surprisingly, network effects and zero marginal costs got little consideration when the primary antitrust laws were written over a century ago.
Those laws say there is nothing wrong with being a monopoly, but monopolists can be held to different standards. So two battles play out. First, how to define the market you might be monopolizing. And second, if you are found to be a monopolist, how your behavior should be constrained (competitors usually offer many helpful suggestions). Google doesn’t seem to be contesting the #monopolist tag. The DOJ is pursuing a narrow claim that Google uses distribution deals to entrench its search monopoly (and the DOJ has not revealed their desired remedies).
In the absence of unambiguous standards for antitrust, cases quickly descend into narratives and politics. Get ready for a media circus. The press has a post-election news hole to fill and are hardly disinterested when it comes to Google. They’d love a big tech scalp to pay off their efforts to paint Big Tech as evil, and especially one they blame for destroying their cozy, old advertising business model (often local monopolies, ironically). Not to mention state attorneys general who really want TV time to help them move up the political ladder.
Don’t think the government (and their fellow travelers in the media) won’t play dirty when it comes to owning the narrative. Google is going to get dragged through the mud. Things will get exaggerated and misrepresented; allegations will veer into the irrelevant and invented. You’re going to cringe at the daily headlines during the litigation.
To help endure the absurdity and dark days ahead, I offer two gifts for that hard-to-shop-for-Googler (who has everything except a space elevator):
First, yet another reminder you’re not Facebook. While the Google case is very narrow (perhaps even settleable), the Facebook antitrust case is existential, with a thermonuclear remedy already threatened (“break them up!!!” which is simplistic but stupid). And Facebook has Microsoft-esque quantities of “bad” email, which means they’ll win the ratings battle among rival antitrust suits.
Second, as a way to occupy your time during the trial, I append below the DOJ Play At Home Game we used during the Microsoft antitrust trial.
(Facebook employees – you can play too! Just search and replace FTC for DOJ! And kudos to you for keeping it real in your email! It will be most entertaining to watch your company fight a scorched earth legal battle every step of the way given the “time machine antitrust” remedies sought by the government).
I am continually amazed at the number of people today who speak authoritatively and with certainty about the Microsoft antitrust case (even as they get so many of the basic facts wrong). In that case, the government had a lengthy laundry list of disparate and mostly long-forgotten complaints, but fought for the narrative high ground. Microsoft took a more analytical approach, aside from a singular ill-fated, ham-themed rhetorical flourish on the first day, and only much later understand what was actually being litigated. Even as the case was unfolding, there was a roller coaster of focus and outcomes between the initial trial, appeals court rulings, and final settlement. Today’s ex post facto clarity about the legal theories and conclusions of the Microsoft case is the narrative fallacy writ large.
This particular episode of the DOJ Play At Home Game featured Bob Muglia’s time in the witness box. He got to answer for Sun Microsystems’ crankiness that the Java dream was not playing out the way they’d hoped (while they tilted unsuccessfully at the Windows PC with “write once, run anywhere”, Linux was eating their lunch). Some of these jokes I am afraid are lost to the sands of time, like Sun Microsystems itself.
I am really looking forward to being just a spectator of these antitrust suits. But if you are a participant, hopefully the Play At Home leader boards will be installed in all the courtrooms.
—–Original Message—–
From: Charles Fitzgerald
Sent: Saturday, February 27, 1999 11:53 AM
To: Jon Roskill (Exchange); Tom Button (Exchange); Tod Nielsen; Ben Slivka; John Ludwig; Eric Engstrom; Thomas Reardon; Russ Arun; Scott Fallon; Kumar Mehta; Yusuf Mehdi
Cc: Bob Muglia (Exchange); Tom Burt (LCA); Jim Cullinan; David Heiner (LCA); Stephanie Wheeler (Sullivan & Cromwell); Bill Neukom (LCA); Vivek Varma (LCA); Michael Lacovara (Sullivan & Cromwell); Steve Holley (Sullivan & Cromwell); Richard Pepperman (Sullivan & Cromwell); Erich Andersen (LCA); Linda Norman (LCA); Karl Quackenbush (Preston Gates & Ellis) (Internet); David McDonald (Preston Gates & Ellis); Will Poole; Cameron Myhrvold; Greg Shaw (Corp. PR); Mark Murray
Subject: DOJ Play At Home Game: The Bob Muglia Edition
Frustrated that Judge Jackson’s unwavering devotion to a fair and speedy trial limits our number of witnesses and keeps you from visiting our nation’s capital? Trying to gauge whether complying with the company’s document retention policy is worth the effort? Curious about how sinister you are in the eyes of the Federal Government? And depending on that answer, will Y2K issues prevent the Department of Justice from “integrating” with the IRS? Ever wondered whether “credibility” issues trump uncontested, incontrovertible facts? For example, if issues were raised about Isaac Newton’s video editing skills, would the Earth immediately spin out of orbit around the Sun and plunge into deepest space?
With the DOJ Play At Home Game, you can now play along (in a completely pro-competitive way, of course) without having to leave your office or sit on one of those uncomfortable courtroom benches. Many of you, in fact, have already played. For the BobMu edition of this game, the rules are as follows (although we reserve the right to change them or apply them capriciously at any time). You are awarded points for each appearance you make during BobMu’s testimony. The more times you appear, the more points you earn. Not all finalists are listed on the To: line of this message. Not all the people on the To: line of this message scored points. Journalists, PR people and lawyers* are not eligible to earn points (aka the “no hacks, flacks or members of wolfpacks” rule). Senior vice presidents and above are also excluded from earning points as they typically have their own editions of the game and could monopolize the scoring. Unfortunately, rewarding the use of obscenities has been foreclosed in this event (we realize this is different from other editions of the game). Points are only awarded once for an appearance within a particular exhibit (e.g. if Bob were to roll his eyes to the sky and exclaim “Ben Slivka, Ben Slivka, Ben Slivka”, it would only count as one appearance). Further, points are awarded only once for a particular exhibit, no matter how many times the exhibit is revisited. Scoring is as follows:
1 point – Appearing on the Cc: line of a piece of email entered into evidence.
2 points – Being on the To: or From: line of a piece of email entered into evidence, or having you name appear in the text of a message.
3 points – Being mentioned by name in the courtroom (+1 point if your name is mispronounced by David Boies)
5 points – Getting dissed by Bob on the stand as he accurately explains you do not set “policy” for the company.
10 points – Getting dissed by Bob on the stand as he accurately explains you do not set “policy” for the company while you are sitting in the courtroom (must be present to qualify).
20 points – Dissing Bob in your email that comes out while he is on the stand.
Naturally, there are fabulous prizes:
David Boies‘ Friend for Life (REDACTED AS HE’S ABUSIVELY LITIGATORY) Award – goes to the person with the highest point score. Please talk to Dan Rosen about where you can pick up your award. You will also become a finalist to have the legal wing of the Microsoft Museum named after you (depends on whether we are successful in purchasing the Kingdome).
Fabulous All Expenses Paid Vacation in Washington DC Award – goes to the person with the lowest (non-zero) score. As the most presentable person around, you get to step into Tod Nielsen’s shoes back in the DC when the trial resumes. You’ll stay in the Tod Nielsen Memorial Room at the Four Seasons Hotel and eat out every night at Washington’s finest restaurants (admittedly in the presence of some Boies-worshipping member of the Fourth Estate and almost certainly one of the worst dressed ones).
Have You Thought About a Career in the Press Handicapping This Trial Award – goes to the person who picks the top three point earners in rank order. You’ll win an official Microsoft “We’re Number One” trophy that is taller than Joel Klein and a four-ounce bottle of Tequila that is shorter than Joel Klein (only of course when he has his platform shoes on).
How Trivial Can the DOJ Go Award – goes to the first person who correctly guesses what the final accusation Boies, backed by the full might and resources of the United States of America, leveled at us as part of a landmark Sherman Antitrust case to tee up his dramatic finish. You’ll win a framed copy of the URL for where to find RMI on our website. Bonus: find some legislation or case law on the issue of URL obscurity and you win a job working for your choice of the Department of Justice or the Iowa State Attorney General.
Stay tuned for the final results – they are being tabulated now. All responses for the last two awards must be received by noon Monday and anyone who has not sabotaged a major competitor (within the market defined as x86 OS with Win32 compatibility and bundling FreeCell although it could also be provided independently) in the last six months is eligible to participate.
Tod and I are wishing we thought of this game earlier, as it could have helped pass the recent months in DC. But in the event we have litigation in the future, we are exploring further integration of the game with the trial proceedings. Perhaps the court would allow us to install a leader board for realtime scoring.
* Note: we have been informed that a white shoe New York law firm has filed a class action lawsuit to allow lawyers to participate in this event. Please make up your own line here about lawyers and class as we would not want to stipulate anything that could be construed as a line. We will contest this suit vigorously and maintain our intellectual property rights give us the right to license this preposterous game under any terms we want. The license today allows any lawyer who raises a foundation objection about DirectX Foundation to participate. In the event a lawyer does fulfill this prerequisite, a 50 point award is earned by having a Microsoft objection actually upheld by any Federal court judge with the middle initial P. We realize this is perhaps an unattainable point total.
Disclaimer: All rights reserved. All decisions of the judges are final (i.e. there is no appeals court). Any resemblance to actual persons, living or dead, is purely coincidental. Any resemblance to our judicial system is purely coincidental (like the trial itself). Sleeping or a strong resemblance to Jabba the Hut is grounds for immediate dismissal. No wagering. Fairly won prizes may not be split up. This is the product of a long, delayed flight home. To the humorless government attorney who reads this: lighten up dude and think about getting a new suit.
UPDATE:
The actual scores:
Needless to say, it wasn’t even close:
BenS: 29 – the impressive thing is he does it with only one 5 point repudiation. Otherwise, its all the litigatory equivalent of singles and doubles.
CharlesF: 12 – I tried, but couldn’t wrangle a repudiation.
FarhanaA: 8 – propelled into the top three on the strength of the VJ6 pricing memo.
JohnLu: 6 – “subversion” didn’t come up, hurting his chances.
RVArun: 4 – probably deserved some extra points for being the focus of the big finale.
TomB: 3 – collateral damage from the VJ6 pricing memo
JonRos: 3 – more collateral damage from the VJ6 pricing memo.
EricEng: 3 – and he wasn’t even successful in getting Intel to stop their JavaMedia work.
TodN: 1 – he gets to keep his job in DC