Highlights and updates from Microsoft @ 25: Impact, influence, and legacy – Part 2
On February 21, New York University School of Law hosted “Microsoft @ 25: Impact, Influence, and Legacy”, a conference dedicated to assessing United States v. Microsoft’s impact on both antitrust law and digital markets in anticipation of its 25th anniversary in 2026. Beyond discussions of law and economics, the conference offered stories of spy-like meetings, dramatic witness confrontations, and reminders about the long-term impact of antitrust enforcement in shaping and re-shaping the economic landscape.
Part I, covering the keynote address and first two conference panels, can be found here. This article covers the luncheon discussion, third and fourth panels, and the closing remarks.
Slade Bond, Chair of the Public Policy and Legislative Affairs practice at Cuneo Gilbert & LaDuca, LLP, spoke on how he perceived the direction of antitrust following the change in administration. He related that before the administration had changed, he had served as Chief Counsel to the House Antitrust Subcommittee. Bond recounted that the Subcommittee had drafted a 450-page report documenting problems it had identified in respect of Big Tech. Ahead of the Subcommittee’s hearing, they heard from an unlikely source – Brad Smith, president of Microsoft. Even more unlikely perhaps was his message. Bond recounted that the message wasn’t criticizing the DOJ or vilifying the government enforcement; rather, “it was accountability is good, accountability is healthy and going through antitrust enforcement made us a leaner, better company.” Bond saw the opportunity for growth in interest in antitrust enforcement, noting that some Republicans who had been more libertarian in their viewpoint were essentially “radicalized” into antitrust enforcement by “abuse of App Store dominance to exclude disfavored speech or, in some cases, really harmful speech. But for them that was . . . a very radicalizing moment and there’s . . . no coming back from that.” From those “radicalizing” effects that spurred some members’ enthusiasm for enforcement, Bond saw potential for legislation around “PBM [Pharmacy Benefit Manager] abuse issues [and] vertical integration…” In tech, he saw more cause for skepticism, noting that key house committee leaders were fundamentally opposed to antitrust enforcement. Thus, while he saw it as possible for house leadership to be supportive or for other routes to be identified, it nonetheless posed “a huge barrier to things happening that can’t be discounted.”
Panel: The Challenge of Remedy
The third panel focused on the lessons to be learned from the experience of determining a remedy in Microsoft. Professor Emeritus Harry Furst of the New York University School of Law opened the panel with reference to the comments of Justice Robert Jackson in International Salt Co. v. U.S., 332 U.S. 392, 401 (1947) that
In an equity suit, the end to be served is not punishment of past transgression, nor is it merely to end specific illegal practices. A public interest served by such civil suits is that they effectively pry open to competition a market that has been closed by defendants’ illegal restraints. If this decree accomplishes less than that, the government has won a lawsuit and lost a cause.
Fiona Scott Morton, Theodore Nierenberg Professor of Economics at the Yale School of Management, stated that in the context of a monopolization case, “what you’re trying to set up is a new environment”. She differentiated this from both cartel cases, where the “but-for world” is understood from prior conduct, and merger cases, where at the time the merger is assessed a regulator is within the “but-for” world. In monopolization cases, she emphasized, “we’re explicitly trying to create a world that does not exist. . . envisioning a marketplace that works with competitors. Therefore, you need incentive and ability. And then you need to think through after you’ve created the incentive and the ability.”
Randal Picker, James Parker Hall Distinguished Professor Law at the University of Chicago Law School, offered historical context in two forms: a magazine identifying and reviewing 30 different internet browsers and a paper by Google co-founders Sergey Brin and Larry Page that originally included an appendix focusing “on the idea that there is an inherent conflict between running a search engine and having it advertising supported” and highlighting that “it would be easy for someone running a search engine to bias results in subtle ways that would work to the detriment of consumers but that would make advertisers happy”, ultimately concluding that it is “important that we have a search engine that remains in the academic realm.”
Tim Wu, Julius Silver Professor of Law, Science and Technology, Columbia Law School, characterized antitrust as a sort of “traditional industrial policy with a negative sign in front. Instead of subsidies, you are sort of negating out exclusionary effects.” He characterized three hallmarks of a successful remedy intervention. The first is that it “opens up an industry that no one knew or [only] suspected” to exist, referencing the software boom following IBM’s antitrust litigation. The second he identified is industrial succession, noting that the auto and aerospace industry were areas where the absence of strong antitrust interventions meant that the players in those industries became stagnant. The final hallmark of success Professor Wu identified was a “lot of history of . . . people quitting their jobs to start new companies.”
William Kovacic, Global Competition Professor of Law and Policy; Professor of Law; Director, Competition Law Center, George Washington University Law School began by highlighting that, at the time Congress began considering upgrades to the antitrust laws in 1914, it had a concern that “in monopolization cases, individual federal judgments might feel overwhelmed at the burden of determining the future of a major sector”. This, he noted, gave rise to a provision in the FTC Act permitting the court to appoint the FTC as a master in chancery to assist in designing remedies. Though this feature was never used, Professor Kovacic considered how it could have been used. He emphasized that this mechanism could capture a complete view of the doctrine regarding remedies in antitrust cases, knowledge about actual effects, detailed knowledge about the company biographies, and information about actual policy implementation.
Alexandre de Streel, Academic Director, CERRE: Professor of European Law, University of Namur and Pierra LaRouche, Professor de droit et innovation, University of Montreal Law identified three main lessons as to remedies from Microsoft. The first of these was that remedies should be focused on the user side instead of the OEM side. The second is that when looking at the user, there needs to “a more refined view of the different types of end users, so they are not all the same.” Thirdly, in implementing behavioral remedies, a regulatory system may be superior because it permits remedies to be designed to assess all stakeholders, permits monitoring the remedy and monitoring compliance, and lastly, that it will adapt the remedy from what has been learned.
Panel: Antitrust and Technology’s Future
The final panel focused on the challenges of directing competition policy and enforcement when technology’s future is particularly unknown.
Erika Douglas, professor of law, Temple University Beasley School of Law, began her remarks noting that questions about data privacy were “lurking within the antitrust context and within competition policy”. She commented that data is competition fuel in this environment, but in Microsoft, she noted “we know that consent decree also ordered digital access, disclosures of APIs, and protocols to encourage competition” and that IBM similarly was required to disclose information in 1952. In those cases, she noted, the data was company data. Now, personal data is at stake and is governed by a “growing array of privacy principles and laws that we don’t really know what to do with in antitrust.” She opined that “thoughtful digital policy is going to be pressed to seek both [antitrust and privacy] or to come up with principles on which trade-offs between the two can be logically and comprehensively decided.”
Professor Avi Goldfarb of the University of Toronto remarked that his concern was that there would not be enough artificial intelligence. He noted his worry “that a small number of tech companies might control AI and either throttle its development or direct the technology in a way that serves their own purposes and not those of the broader society.” He noted three means by which this could come about: endogenous sunk costs leading to oligopoly in AI; the existence of regulatory regimes that may deter startups and increase liability risk, leading to customers favoring established companies; and large tech companies leveraging their dominant position to self-preference in other areas.
Eleanor Fox, professor emerita, New York University Law noted her concern that in part because of a lack of collaboration among jurisdictions, there is a lack of “norms that can be generalized to say ‘these are the things the biggest gatekeepers should not do’”. Fox later highlighted her concern that companies would obliquely bring concerns about international competitors into antitrust conversations, arguing, in effect “let the merger happen because if you prohibit the merger, you’re going to let China come in”; to combat such issues, she endorsed that any nation that permitted such a defense also permit a competitiveness offense – permitting regulators to use the inefficiency of large mergers as a reason for them to not be approved.
Luke Streatfeild, partner at Hausfeld & Co., highlighted his concern that the tools being implemented to protect competition may not be deployed effectively, highlighting the multi-year delay in implementation of the Digital Markets Unit and concerns that antitrust’s involvement in political discussions could render it “academic in the pejorative sense” because as political priorities change, it can result in changes in enforcement priorities. Streatfeild noted his view that antitrust was best served at addressing issues deriving from market power and not policy-related matters such as media plurality stating “once you’ve dealt with the necessary condition of having a contestable market and having choice, which is an important sort of starting point but not the endpoint, I think then these issues are more properly dealt with under their respective regimes.”
Closing Wrap-Up: In a New York Minute
Professor Andrew Gavil of Howard University School of Law and Professor Emeritus Harry Furst of the New York University School of Law closed the event with final remarks. Gavil pondered whether Microsoft would come out distinguished by the wave of Big Tech litigation or whether it would be invigorated. Furst noted that “the plasticity perhaps of Microsoft or great cases is that . . . they’re not really set in stone and there’s much to talk about and interpret. And, in some sense, that’s what great texts are.”
