Open Letter to Orrin Hatch and the Senate Judiciary Committee

"What I would say if I were asked to Testify at the 'Market Power and Structural Change in the Software Industry' Hearings..."

by Jack William Bell

Good morning esteemed Senators. As I read to you from this prepared statement, the first thing I must express is my utter amazement that you are listening to me in the first place.

I am not amazed because I am here, even though I am a nobody. I certainly am unimportant from where you, the lawyers and the other witnesses at this hearing sit. I cannot deny it. I am one of the faceless cogs of the Software Industry you are discussing. I am not a mover or a shaker. I am not unique in any respect. I am just another geek who writes code for a living. Still, I am certain you occasionally listen to nobodies like me.

Nor am I amazed because you are discussing this subject at all or because you are concerned about where it is going. The Software Industry is absolutely one of the most important economic factors in the United States of America today. Perhaps in the world. Your concern is understandable and laudatory.

No. I am amazed because you are actually listening to the kind of person you truly need to hear from in this particular matter. The kind of person who will be most affected by your decisions even if it doesn't seem that way when comparing me to the captains of the industry...

There are many more like me than there are like them. The big companies employ a small fraction of the working programmers in this world to write their operating systems and programming tools and word processors and web browsers. The rest of us make our living writing the internal applications that keep business and government running. Writing vertical market applications. Writing games. Writing small programs that fill niches the big companies don't care about. We, who are by far the majority, are wrongly denied a voice at hearings like these because individually we are nobodies.

But you see, precisely because I am a nobody I am free to tell you the one thing you most need to hear. I lose nothing if you choose to dislike my message or me. Yet I stand to gain everything if you should decide that I am right. Sadly, I fear you will not.

Many of your other witnesses here also believe in what I am about to tell you; but their responsibilities and their positions encumber them. They cannot express something that will damage a case they have carefully prepared to strengthen the standing of the one company or group they represent. And this thing you need to hear will not come comfortably to your ears.

No one but another working geek like myself would dare. Not the lobbyists. Not the lawyers. Not your aides. None of these would try to sneak it into a position paper even if they actually understood the problem.

You see the problem, and the thing you must hear, is this... Quite simply: You are possibly the least qualified people on the face of the Earth to decide how the Software Industry must proceed. I say this in all reverence to your positions, with a great deal of respect for your intelligence and with the knowledge that you truly want to do the right thing for America and the world as a whole. But I also believe it with all my heart.

There is a clear cut reason why I believe you unqualified; the Software Industry is unique and barely understood by those who have spent a lifetime learning it. The economic forces that drive it unlike any mankind has ever dealt with before. The Software Industry is too fresh and too new and has yet to fall into any predictable pattern at all. And, although you and your advisors undoubtedly are among the most qualified people in the world to deal with other industries, the knowledge that has served you so well in the past will not serve you here. Instead it will lead you into beliefs and actions that may hurt everyone. Actions that will almost certainly harm my peers and myself.

As an example I give you the focus of these hearings: Microsoft's so-called monopoly. Without doubt Microsoft has reached its position in the software marketplace by using every trick at their disposal. They are the most hardscrabble street fighters in the Software Industry. But they have to be. One slip, one moment of resting on their laurels and they will be just another has-been. And despite their plaintive cries to the contrary, the fondest hope of each of Microsoft's competitors is to be just like them.

I know these things because I have worked as a contractor (not as an employee) at Microsoft and at some of their competitors. I have seen how these companies operate. I have seen how the ones who chose not to operate from a position of 'do what it takes to win' have lost their way and died. I would be the first to say that the Software Industry is a perfect example of vicious, ruthless, survival of the fittest capitalism.

What I also say is that this is a good thing...

There are those, even among my fellow geeks, who would argue against this. But those of us who work in the trenches, who actually create the software that runs the world, know one thing if we know nothing else -the most important thing we can have are Standards. Standard languages so the each computer platform is not an island. Standard interfaces so that the different platforms can talk to each other. Standard components and Application Programming Interfaces (also known as API's) to make our jobs easier. The thing is; standards alone are not enough. They must also be good standards. And there has never been an example of a good software standard that was promulgated from above and set in concrete. Not one.

In the complex and thriving ecology that we call the Software Industry, Microsoft has been the single greatest predator. It has reached that position by eating the weak and the sick, while the more nimble and swift have escaped it. The result has been a continual evolution that has benefited nearly everyone. A culling that paradoxically grows the Software Marketplace as a whole. But the real thing Microsoft has sought to control is not this Marketplace itself, or at least not directly, but rather the Standards I have spoke of. Microsoft has long known something its competitors have only learned in the last few years; he who controls the API's controls the most important resource of all - programmer mindshare.

When I am asked to develop a new software program for a business, I use the tools that bring me the most success. In my case these tools are, without exception, either Microsoft products or built using Microsoft promulgated standards. I use these tools not because I love Microsoft but because I need to do my work quickly and get it right the first time. These tools help me do this, imperfect as they are. I do not develop for platforms other than Windows because by learning how to develop for Windows I know I can develop software for more than eighty percent of the computers on the planet. Microsoft has a large part of my mindshare and they have it for good reason. Those programmers who work outside these standards find themselves dealing with a much smaller pool of customers and, often, less powerful tools.

This is a good thing! If the competitors to Microsoft had their way I would either need to develop for a platform that only represented forty percent of all the computers or I would need to develop for multiple platforms. Oh, I see the representative from Sun is itching to raise his hand and butt in, but sorry Sir. Java isn't the answer right now and I don't have time to wait. I need to do my work this week. Besides I don't want to see one monopoly replaced with another. Give me the devil I know.

No, the current situation is a good thing. It is good because there is plenty of room for everyone. And Microsoft knows it. If they relax for a minute along will come some young lion, hot to take out the king. This keeps them struggling. 'Digging' as one geek pundit puts it. And it keeps the young lions busy too. As an independent software developer all this activity is good for me and I know it. Everyone is trying to make my life easier and to get my attention with his or her cool new doo-dads. And sometimes those cool doo-dads really are cool and helpful and able to make my life better.

Now, I do understand your concerns. To an outsider, and indeed to many insiders, it does look like Microsoft has grown so big it threatens to take over all the Standards. To own all the cookies. To get all the mindshare. But it just doesn't work that way. I have seen that place from the inside and I can tell you they can't agree among themselves as to what the best standards are. And, aside from a few acronyms and from Windows itself they haven't produced very many successful standards all on their lonesome anyway. Microsoft has always been more of a 'follower' than an innovator no matter what they might want you to believe. And, as such, they have succeeded not by forcing people to use their Standards, but by embracing successful Standards created outside the company. They have led the pack mostly by figuring out where everyone wants to go and then getting in front.

I repeat; this is a good thing. Because of Microsoft bringing all the successful standards under one umbrella my job gets easier. My customers are more satisfied. My life is better. And the best part is the fact Microsoft cannot truly control these standards, they can only follow along with what I and my fellow working geeks want. The minute they choose not to do so, well then here comes one of those young lions who is willing to make us happy!

Despite appearances there is no monopoly. Microsoft does not really 'control the Software Industry'. In all truth Microsoft is just surfing the wave along with the rest of us. Only thing is; they are so big that they have convinced themselves and a lot of other folks that they are actually making the wave. It just isn't so. All Microsoft is truly doing is to create a wake large enough that we little guys can ride that wake in safety instead of surfing the hard way with the big boys.

Besides, doesn't monopoly imply that competition is totally locked out? That other companies cannot even begin to compete? That the monopolist can do a bad job and still win because they hold all the cards? In this industry things do not work that way. The Software Industry is too driven by fads and new technologies and constant evolution for one company to ever dominate it for long. Microsoft has only done as well as they have out of a combination of luck, hard work and good management. And that will not last forever. Until then I believe that the industry needs Microsoft to fill its role as a stabilizing influence on standards.

You see I don't fear Microsoft that much. Sure, I know that if I get in their way Microsoft will eat my lunch. But I don't sweat it; I just look for niches they don't care about. I am a Remora to their Shark. It is a game I know how to play. What I do worry about is, quite frankly, good and upright representatives of the people like yourselves who see a problem and want to do something about it. I worry about this because the only things you can do will damage my own prospects in some manner. I fear that you will change the rules in such a way that the game itself will change...

After all, what are your choices? You could do major damage to Microsoft in some way; but I don't see that as helpful to me or to my fellow working geeks. As I have said before; Microsoft has been good for the one thing I really care about - Standards. If the Software Industry loses Microsoft in their current role then it will either end in chaos or someone else will take their place. I prefer things as they are.

Or, I suppose, you could establish a 'Software Standards' bureaucracy of some kind. The software equivalent of the Food and Drug Administration. This would be a disaster of epic proportions! It would put the standards that we working geeks rely on in the hands of politicians and lobbyists. People who do not understand how and why we work but do understand money and power. This is the one thing I fear the most. And historically it seems like the most likely option from your point of view.

ASo, I beg you. Leave well enough alone for a while. Wait and see. If you want Microsoft's power reduced a little then establish some hothouse's for the people who want to develop alternatives. And, please ask your aides to search the web for 'The Cathedral and the Bazaar' and then read it even if they must print it on paper first. Trust in capitalism and in the inborn orneriness of geeks like me. Believe me, you can't even lead us to the water if it isn't water we want to drink.

I know you look at Microsoft and see a monopoly, but that is because you are used to a different kind of economics, one that depends on raw materials and factories and shipping costs and inventory. The Software Industry is wildly different, my fellow geeks and I are the sole fountainhead from which the money flows. It is our brains which provide the motive power. We are both the creators and the true consumers that control the Software Industry. The normal people who buy software, those who seem to be the consumers, are actually buying our time and our time is precious. It only becomes cheap when there is an economy of scale. And that only happens with standards. And good standards only evolve in a sea of intense competition; they cannot be legislated from above.

If you get nothing else from this statement, I pray that you receive this final word with understanding: The Software Industry is so different and so new that the old rules just do not apply. And the new rules are not clear yet. But, despite all appearances, you may well be trying to fix something that isn't broke.

Thank you for your time...

Copyright 1998 Jack William Bell

Last Changed 12/21/1998

From:   Chuck Grassley [Chuck_Grassley@grassley.senate.gov]
Sent:   Thursday, March 05, 1998 8:19 AM
To:     Jack Bell
Subject Re: Open Letter to Orrin Hatch and the Senate Judiciary 
Comm

*** THIS IS NOT AN OFFICIAL ANSWER TO YOUR CONCERNS! ***
In an effort to answer your concerns as thoroughly as possible, 
as well as to ensure a secure response, I will respond to you 
via U.S. Mail if you included a complete mailing address.  If 
you didn't include your postal mailing address, please e:mail 
it to me as soon as possible with a copy of your original 
correspondence so I can get you an answer to your concerns.

Thanks for writing and check out my homepage at 
http://www.senate.gov/~grassley.  And, don't forget to sign 
the cyber guestbook!

From:    senator hatch [senator_hatch@hatch.senate.gov]
Sent:    Tuesday, March 03, 1998 11:15 AM
To:      Jack Bell
Subject: Rule: Re: Open Letter to Orrin Hatch and the Senate 
Judiciar

     Dear Friend:
     
Thank you for your recent Internet e-mail message to my office.  
Please accept this response as an indication that I have 
received your message and will note your comments.

Unfortunately, due to time and resource limitations, I am unable 
to reply to your message by e-mail.  Those seeking information 
or asking questions who are Utah constituents and who have 
included a complete postal address in their message will receive 
a reply via U.S. Mail as soon as possible.  

If you did not include a postal address in your initial email 
and you would like a response from me, please _resend_ your 
_complete_, _original_ _message_ along with your Utah address.
Again, I appreciate hearing from you.  Please continue to 
keep me informed on issues of importance to you.
Sincerely,
     
Orrin G. Hatch
United States Senator

From:    John Ashcroft [John_Ashcroft@ashcroft.senate.gov]
Sent:    Monday, March 16, 1998 7:01 AM
To:      Jack Bell
Subject: Re:Open Letter to Orrin Hatch and the Senate Judiciary 
Commi

Dear On-Line Friend:

Thank you for contacting my office to express your opinions 
about the recent publicity surrounding Microsoft.  I appreciate 
hearing your views on this important issue.

Allegations have been made that some of Microsoft's practices, 
such as using its market power in computer operating systems 
to promote its Internet browser, have crossed the line into 
illegal conduct. The Justice Department is investigating whether 
these allegations are true and whether any of those practices 
violate U.S. antitrust law. I cannot predict the outcome of 
that investigation.  

However, I am confident of this: whatever the outcome, any 
effort by Congress to micro-manage this dynamic sector of the 
economy is doomed to backfire. Indeed, the only thing more 
frightening than today's Congress trying to tinker with the 
technology of tomorrow is the notion that we might need the 
FIC -- a Federal Internet Commission -- to go with the FCC and 
the FTC. Congress needs to remember that the technology 
industry has flourished precisely because the federal 
government has gotten out of its way.

Recently, the Senate Judiciary Committee, of which I am a 
member, examined competition in the computer software 
industry.  The software companies are prime examples of the 
ingenuity and growth that mark this sector of the economy.  
Two decades ago, these companies, which now employ thousands, 
were just getting started and in some cases had nothing more than 
ideas on a drawing board. Our guiding principle in examining this 
industry must be that nothing -- neither government regulation 
nor illegal monopolization -- can be allowed to stifle the 
tremendous competition, growth and innovation that have 
characterized this nation's "high tech" industries.

While the technology sector has clearly been dynamic, no sector 
of the economy is immune from the antitrust laws.  Our antitrust 
laws -- when properly applied -- guard the boundary between the 
aggressive innovation on which the nation's economy is founded 
and anti-competitive practices.  In particular, the prohibition 
on illegal monopolization in section two of the Sherman Act is at 
the heart of any legitimate effort to promote competition. 
However, nothing in the antitrust laws prevents a company with a 
superior product from maintaining its market share through 
competitive practices. The antitrust laws currently on the books 
and applicable to every industry in the nation must be respected.  
But beyond that, the best thing Washington can do to promote 
competition in high technology and on the Internet is to let these 
innovative and exciting companies do what they do best.  

Thank you again for expressing your opinions on this important 
issue.

Sincerely,

John Ashcroft
www.senate.gov/~ashcroft

Besides, your piece is as pretentious as that of any 
politician's blather -- regardless of their position. It's 
terribly over-written.  It's clueless.

Dana, I can't argue about the piece being overwritten. Hell, 
I agree.

But I do ask you to put aside your kneejerk reaction of viewing 
Microsoft as the 'Monopolistic Evil Empire' for just a moment. 
I ask you to look at the situation from the point of view of the 
hundreds of thousands of small-time software developers like 
myself who, to one extent or another, depend upon Microsoft 
products. We don't love Microsoft. But we do want a standard 
operating system and a set of standards that apply to the 
programming interfaces.

Without ODBC where would we be? TCP/IP? HTTP? HTML? Without the 
other hundreds of acronyms around which modern software 
development revolves? None of these things came from Microsoft, 
and none of them depend on Microsoft. But Microsoft has embraced 
them, extended them, wrote components and programming tools to 
make using them more efficient. Microsoft has brought them into 
a set of operating systems that run on the great majority of the 
computers out there. All this has truly made my life and the 
lives of developers like me better.

I will not go so far as to call you clueless, but before you 
continue to insist on my lack of a clue please talk to other 
programmers like myself who develop in-house and vertical market 
applications. Not to the Lunix geeks you know, but to the great 
majority of programmers who develop small applications for 
Windows. After that you can call me clueless. 

But until then know this; I have yet to receive mail from the kind 
of developer I consider my peer that did not start with the words 
'Amen' or something of the like. I know it can not all be positive, 
but it has been so far.

There's a lot of talk right now that the anti-trust action against 
IBM failed, that only Microsoft's rise caused IBM's fall. History 
shows that's bunk. IBM became so fixated on the Justice 
Department's actions that it took its eye off the ball. It became 
a lawyer-led company.  That's what made it vulnerable. An important 
lesson there for the $50 billion man...