The History of the Internet: Netscape v. Microsoft
I can't recommend highly enough this Vanity Fair piece providing an oral history of the Internet. There are plenty of lessons for entrepreneurs and inventors in the piece, such as the description of AT&T's reaction to the suggestion of how packet-switched networked computers would be a huge market (they scoffed at the idea that there would ever be more than a handful of computers on such a network). But the part that really jumped off the page for somebody interested in both IP and antitrust was the description of how Netscape and Microsoft ended up in an all-out war for the browser market. Listen to what Thomas Reardon from Microsoft had to say:
"I was the first at Microsoft to know about Netscape. I remember calling down there and saying, Hey, I’m with Microsoft, and I’m looking around at all these people who started Web browsers because I think we’re going to do one inside of Windows and we want to know if we might look at your technology as a source for this, do a license deal, or we buy your technology. And they told me basically to go fuck off."
And here's how Netscape's outside counsel Gary Reback (an antitrust lawyer) described a later meeting between Microsoft and Netscape that took place at Netscape's offices:
"A group of Microsoft executives came down to Netscape and had a meeting, and the Microsoft people in effect said that if you’re going to make a browser that can serve as a platform for new applications it’s going to be all-out war with us. But if you want to do something smaller, that just hooks in with our stuff, we’ll give you the non-Microsoft part of the market to work with. And we’ll sort of draw a line, and you’ll have part of the market and we’ll have part of the market."
Reardon and his team were apparently caught off-guard by the attitude of Netscape's team at the meeting:
"The government’s argument that we went down there Mafia-style, telling Netscape that they have to do a deal with us or they were going to find a dead-horse head in their bed in the morning—it was kind of absurd. It turns out Marc was sitting in the meeting, taking notes on his laptop. They had contacted this famous anti-trust lawyer, Gary Reback. They had been working with him. They kept asking us these really loaded and weird questions. We thought we were down there for a business meeting, technology meeting, engineering meeting. And then they ended up taking all the minutes of that meeting, you know, and sending it out to this anti-trust attorney, who then turned it over to the D.O.J. that night. It was just a bunch of bullshit."
And their hostile reception apparently spurred some competitive juices at Microsoft. Here's what Microsoft manager Hadi Partovi had to say about the competition between Netscape and Microsoft:
"Both Marc Andreessen and Jim Barksdale were trash-talking basically. I mean, there was a competition between the companies, but it got to the point where they felt they were far enough ahead that they might as well trash-talk to build up the perception that these guys are going to win. On the one hand, you know, they were the David and we were the Goliath. On the other hand, Internet Explorer only had 5 percent market share in the Web-browser world, and nobody had even heard of it when we started out. And it definitely got people’s competitive juices up. Marc Andreessen had said something along the lines of 'Windows will be reduced down to being a poorly debugged bag of device drivers.' And what that means is basically the relative value of Windows will be pretty much meaningless."
The result (if you happened to sleep through it) about five years later, was a ruling against Microsoft, which was later partially overturned.
The story is fascinating for antitrust and IP lawyers, because it demonstrates, quite vividly, the prisoners' dilemma faced by startup "Davids" and incumbent "Goliaths." In particular, it's worth asking a few (related) questions about this episode:
- Could Microsoft and Netscape ever have found a contractual way to partner?
- If so, would that have been to the benefit of consumers?
- Regardless of any agreement could have been reached, could the costs of litigation been reduced?
On the first question, it's tempting to answer that had different people been involved on the Netscape side, or had the same people had a slightly less competitive attitude, then some partnership might have been possible. From these descriptions of the meeting, Netscape executives seem to have taken the view that there was nothing substantial of value that Microsoft could offer Netscape. This sort of begs of the question of why they even agreed to take the meeting with Microsoft. But the way that Partova and Reardon tell the story, it was a trap, designed merely to generate fodder for Netscape's antitrust lawyer.
But that answer is too easy for a few reasons. Having worked with plenty of entrepreneurs (and now being one myself), I understand and have seen how a kind of persecution mentality develops within startups. Especially very ambitious startups, that launch well before most people have any idea of what market they're after. It would be terrifying to have a huge incumbent casually call up and ask to talk nitty-gritty about what you're doing. It'd be like the rebel headquarters all of a sudden getting a friendly call from Darth Vader. And that's without getting into the reputation that Microsoft had accrued by 1995 for being a bit -- shall we say -- casual with others' IP rights. I don't know enough of the details of the earlier episodes (involving their acquisition of DOS, for example) to know how well-deserved that reputation is. But until recently at least, Bill Gates never struck me as a particularly soft-hearted guy.
So I'm thinking Microsoft was too late in approaching Netscape. By 1995, Netscape had already gained enough momentum that Microsoft was merely reacting to the new market that had developed. If somebody at Microsoft had been paying attention in 1993 or 1994, the whole story might have been different.
But the second and third questions seem easier.
I do not believe that consumers did benefit from the war between Netscape and Microsoft. I'm sure that the new versions of each browser rolled out quicker as a result. And consumers (and other dot coms) benefited greatly from the iterations. But by far the biggest driver of growth in the browser market was not any innovation by Netscape or Microsoft engineers; it was simply the network effect of having more and more people on the web. And I'm pretty sure that the largest part of the increase in new web users arose from PC and OS buyers who would never have figured out how to download a browser on their own suddenly finding one installed with their operating system. Obviously, this was going to happen no matter what Netscape agreed to. To wit, over a decade of litigation and hundreds of millions of dollars in taxpayer money didn't stop it from happening!
Which brings me to the third question of how could those litigaiton costs beeen reduced. The answer is stronger IP rights for the "Davids" like Netscape. Admittedly, in this case it's hypothetical since differences in culture and business plans basically made an agreement between Netscape and Microsoft impossible. But I suggest that in a less emotionally charged atmosphere, strong IP rights would have made it easier for Netscape to take a meeting with Microsoft, and eventually reach some partnership agreement whereby Netscape would have received a royalty share on every copy of Internet Explorer installed.
With stronger IP rights a company like Netscape in 1995 might have looked at the negotiation with a company like Microsoft a little differently. Some startups might see that there was no good reason to try to reinvent the marketing, distribution, and manufacturing facilities that a larger company already had setup to sell its product or service worldwide. Some startup executives and investors might be open to licensing technology, especially if it came with a strong guarantee of non-interference with whatever core market that the startup was after.
Before you send me an angry email, understand that I'm NOT saying that that's what Netscape should have (or even could have) done in this situation. Netscape in 1995 really had no good reason to take a meeting with Microsoft. They had a huge head start in the market. Microsoft had no engineers and no already developed technology that Netscape needed to continue to execute on its business plan. Sharing ideas with Microsoft seemed far more likely to hurt than to help Netscape in executing its business plan, which no doubt ultimately involved knocking Microsoft off its position as the largest software company in the world.
What I am saying is that if we had a stronger patent system, then more startups and established companies would be considering the possibility of IP-driven partnership. There is no way that a company like Microsoft could have executed on a new idea the way that Marc Andreessen did in the early 1990s. And there is no way that any startup could have built a network of manufacturers, distributors, and marketing agents fast enough to have competed directly with Microsft in the operating system market -- no matter how killer the app.
Wouldn't it save everyone money, especially consumers, if startups and large corporations had more incentives to form IP-oriented partnerships?


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