Busting Trusts or Trusting Busts?

October 22, 2020 Updated: October 25, 2020


In the news last week, the Justice Department filed an antitrust lawsuit against Google. This action is good news to many conservatives, though not for the reason they wanted.

The action was taken over allegedly unlawful cooperation between Google and Apple to control the mobile phone sales and advertising markets.

Also in the news recently was the outright blocking by Facebook and Twitter of an article about alleged unethical, possibly illegal activity by Democratic presidential candidate Joe Biden and his son Hunter. The article wasn’t published by some clandestine, conspiratorial organization but by the New York Post, having the fourth largest circulation of any newspaper in America.

Not only was the particular article blocked from being shared, but the newspaper’s account was shut down by Twitter and limited by Facebook.

Many conservatives have been arguing for the government to break up the high-tech giants because of their liberal biases and control over how people get their information. When I ask them how such a breakup won’t simply spawn many high-tech companies, each with liberal biases, they don’t have an answer.

As conservatives, do we really want the government to interfere with free markets? Has it worked in the past?

Winners and Losers

In 1969, the U.S. government brought an antitrust lawsuit against IBM. Do you remember that IBM was once a behemoth tech company, much larger than all other computer companies combined? Six years later, the case went to trial. Seven years after that, the government withdrew its case. IBM made some concessions—I know, because I worked for Silicon Valley company ROLM, which IBM bought in 1984 and immediately sold off the computer division to avoid another potential lawsuit.

IBM escaped the antitrust lawsuit unscathed, only to be wounded by the new tech giants in the 1980s and onward, mostly founded by hippies in garages and students in their dorm rooms. While it’s unclear how much the government spent on the lawsuit, IBM is reported to have spent tens of millions of dollars each year for those 13 years, possibly leading to its loss of market share during that period.

In 1998, the DOJ and the attorneys general of 20 different states filed antitrust charges against Microsoft for bundling a web browser into its operating system, thereby excluding other web browsers from its competitors. The only significant web browser application at the time was from Netscape, which cheered the antitrust action.

It had been clear from its founding that Netscape intended to overtake Microsoft as the world’s largest software company. They made no secret of that—they said so in every press release, every interview, every advertisement. The only problem was that its web browser, called Netscape Navigator, was based on a free app called Mosaic that was developed by a bunch of students at the University of Illinois. I could easily create a similar browser by myself in about a month—the technology just wasn’t very complex.

Netscape relied on advertising and publicity and great positive coverage by the media, not technology. Their product was buggy and unreliable compared to Microsoft’s solid Internet Explorer. I had an e-learning startup at the time, and my web designers would beg me not to have to support Navigator. Netscape collapsed of its own internal mismanagement, not from any bad behavior by Microsoft.

The proof of this is that while Netscape was publicly whining about big, bad Microsoft, Google was quietly creating a new software business that would eventually compete legitimately with Microsoft.

Should the government break up the new tech giants? I don’t think so. IBM was king until Microsoft dethroned it. Then, Apple surpassed Microsoft. Google came out of nowhere to become one of the fastest-growing companies in history. Facebook didn’t exist only 20 years ago. Netscape is gone. Myspace is gone. Yahoo is a minor player.

The free market chooses winners and losers pretty efficiently.

A Public Square

But what do we do about the fact that Silicon Valley companies have so much control over the information we receive? As I pointed out in another article, these companies have strong “progressive” biases because in Silicon Valley, these biases are the unquestioned norms. That’s why the company executives argue so vehemently that they aren’t biased. Breaking up these companies would only produce smaller, still biased companies.

Instead, the question is whether the government should be giving them immunity from their actions. As I pointed out in a previous article, Section 230 of the Communications Decency Act of 1996 protects tech giants from lawsuits over the things that are published on their sites. This is a useful and necessary protection for free speech, when that speech is truly free. However, when the companies start manipulating the content, then speech is no longer free, and these protections should be revoked.

To maintain these protections, tech companies should revert to the original concept of the internet as a public square. I propose that they restrict nothing on their sites that doesn’t violate the laws of the jurisdictions in which it is viewed. Users could then vote on whether an ad or a post is truthful, false, obscene, important, biased, racist, etc. Those things that are heavily voted into a negative category such as “fake news” can be flagged, but not blocked. Users should still be allowed to see it and vote it back into the “truthful news” category. Articles and ads can be voted “obscene” or “unobjectionable.” Ads can be voted “right-wing” or “left-wing.”

The categorizations wouldn’t be permanent and could change as more users vote.

This kind of ranking and rating of content is democratic rather than controlled by self-selected committees of elite progressives in Silicon Valley. And the tech companies already have the technology to implement it.

Protecting Innovation

Then how do individual inventors and entrepreneurs compete against these behemoths with their incredible resources without government protection? It should be done the old-fashioned way, through good old American ingenuity, venture capital investing, and protection of intellectual property in the form of patents, trade secrets, and copyrights.

While many of these tech giants claim that patents destroy innovation, the opposite is true. They all got their own patents early on and used them to negotiate for investment capital, defend themselves against larger competitors, and eventually assert them against competitors. Now that they have their patents, and their huge resources of money and influence, they’re trying to convince the public that weakening the patent system protects the little guy.

But it’s a strong patent system that actually protects the little guy.

Unfortunately, in 2011, these companies did what seemed impossible—they brought Republicans and Democrats together to pass the America Invents Act that weakened U.S. patent law. This effort was led by Rep. Darrell Issa who, ironically, co-founded and ran Directed Electronics, a company that asserted its many patents against competitors. I know, because I helped defend companies against those patents. Once in Congress, his opinion about patents suddenly reversed.

In summary, government antitrust lawsuits won’t work, just like they haven’t worked in the past. If the tech giants continue to act as a publisher by selecting and blocking content, rather than as a platform that allows all content, then the government should stop protecting them from lawsuits. Ideally, the tech giants could implement a democratic solution to content rating and selection and, in doing so, continue to get government protection from lawsuits.

And if we expect new tech companies to sprout and grow, with better ways of keeping the public informed and engaged, we need to reverse course with the patent system by strengthening it, not weakening it, so that many more technology choices become available to the public.

Bob Zeidman is the creator of the field of software forensics and the founder of several successful high-tech Silicon Valley firms including Zeidman Consulting and Software Analysis and Forensic Engineering. His latest venture is Good Beat Poker, a new way to play and watch poker online. He is the author of textbooks on engineering and intellectual property as well as screenplays and novels. His latest novel is the political satire “Good Intentions.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.