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Do Software Makers Have to Protect Rivals?

In "Microsoft Search Compromise Could Hinder Innovation," Boston University law professor Keith Hylton raised the issue of how the government's case against Microsoft appears to have expanded antitrust law to include an obligation on the part of software companies to protect rivals. This is not an endorsement of Microsoft's behavior or criticism of Google's complaint about how Vista handles search. Rather, it's an observation about the possible direction of future antitrust lawsuits.

The idea that dominant software companies -- those against which a plausible antitrust suit might be brought -- could face legal jeopardy if their code puts a rival at a disadvantage is intriguing. It suggests that the antitrust law now includes an implicit endorsement of openness.

Now, openness may well make a lot of sense from a market point of view. Customer demand has been one of the driving forces behind IT interoperability, but there's a case for closed systems, too.

The question is whether Microsoft and Apple will see their ability to control their respective operating systems continue to diminish as rivals demand interoperability and equal access to computing resources.

Indeed, it's plausible that this argument could be applied to online companies like Google.

We won't know until the right lawsuit comes along, but for now it looks a lot like the network has beaten the computer.

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