A position that boils down to Private sector good, government bad is less a philosophy than a tantrum. Indeed, that is all a sensible, rather than a knee-jerk, conservatism can mean. The facts of the Microsoft case are easily sufficient to overcome that presumption. Richard A. Epstein Judge Bork s pointed defense of Netscape again confuses the welfare of Netscape with the welfare of consumers. His limp conclusion is that antitrust injury to consumers should be presumed from Microsoft s aggressive entry into the browser market, just as it is in horizontal price-fixing cases.
Rigged prices exclude some consumers altogether from the market, and raise the costs to others.
Huff and puff as he will, Bork cannot deny that over the short run, Microsoft s entry lowered, not raised, consumer prices, and undercut the Netscape monopoly in the browser market. Bork claims that the case involves a potent mix of predation and tie-ins that insidiously undercuts innovation by imposing barriers to applications. He writes as though giving away the browser for free condemns Netscape to perpetual losses. As to predation, the entire prospect is far-fetched when the marginal cost of additional copies of Netscape or Explorer is virtually zero. Indeed, Netscape now offers its browser for free because, like Microsoft, it hopes to earn revenue from third-party advertisers and vendors.