Ithink the world would be a better place without McDonald’s or Microsoft.
According to views put to courts on either side of the Atlantic, one sells food that is bad for you by youth who are exploited and the other abuses its monopoly position to force you to buy or use inferior computer software.
The court cases have the same genesis – an objection to excessive corporate power. They also have a similar cause – the law giving the large corporation far too much power in the first place. And in both cases this week the corporations had incremental losses.
But there are fundamental differences between the cases. In the McDonald’s case, the large corporation is suing two unemployed people who had the temerity to hand out leaflets outside a McDonald’s outlet. (I hesitate to use the word restaurant.) The leaflet contained a range of allegations, some of which were extravagant, such as that McDonald’s poisons people, and some of which were true of fair comment such as that McDonald’s food will contribute to heart disease and that it exploits children with its advertising.
It is a David and Goliath struggle. In this case David has only one surprising strength – the equivalent of David’s pebble is the leafleteers’ poverty. McDonald’s can go sing for their legal costs and damages. The costs have run into millions for the 314-day trial (the longest in British history) and the 23-day appeal, and there is more to come. An appeal to the House of Lords and then to the European Court of Human Rights. The latter will put a different perspective on it. English law has persisted with imposing the bulk of the onus on publishers with the motto publish at your peril and prove the truth of everything you say. The European tradition comes from the other direction: starting with a presumption that you can say what you like and it is up to the complainant to prove damage.
The publish-at-your-peril ethos also runs through Australian law. But the ethos is becoming more absurd in the age of the internet. In the McLibel case it is laughable. This action has resulted in a spawning of a huge amount of material attacking McDonald’s about which McDonald’s can do nothing.
Alas, the Court of Appeal this week did not bite the bullet and correct the absurdity. Rather it found against McDonald’s in a small part of the case using the confines of present law. The leafleteers argued unsuccessfully in the big issue that the law should not permit corporations to sue for libel.
Interestingly, the large corporation can get away with perpetual lying in its advertisements, according to the trial judge who said, “”various of McDonald’s advertisements, promotions and booklets have pretended to a positive nutritional benefit which their food did not match”. Yet the ads continue. It shows the importance of allowing freedom of communication both ways with lots of latitude for mistakes and exaggeration if we are to have a genuine balance between freedom of speech and reputation.
The only reason the McLibel case is resulting in some justice is not the court’s reasoning or the law upon which it is based, but because of the pebble of the leafleteers’ poverty and the willingness of others to help them with legal work and expert testimony. If they had had any personal wealth it would have been unjustly chewed up.
The Microsoft case, on the other hand, is more a Samson and Delilah struggle where each side has its strengths and weaknesses. The Governments of 19 states are taking action against Microsoft for monopoly practices.
It is being fought as an anti-trust case, but the problem is more fundamental. The root trouble is that the law has gives copyright protection to computer programs. That is a 50-year monopoly. Far too long. Copyright was originally given to allow authors and their families a reasonable return during their lives and 50 years beyond, after which the works would pass into the general body of free public works. There is a public benefit. Take the works of Dickens, Shakespeare, D. H. Lawrence for example. Computer coding will be worthless in 50 years. There will be no public benefit. But the protection has enabled Microsoft to build up a monopoly because its code for its operating systems have not entered the public domain in a time period in which it can be of public use. The public has not had fair return for the granting and protecting of copyright in the computer program.
The standard patent monopoly for new industrial-type inventions is 16 years and 20 for pharmaceuticals. That is a fair balance between present private monopoly protected by the state and later public benefit.
With computer programs, the period should be about five years. Windows 3.1 would now be in the public domain. Others could build on it and develop it in different ways, for the public benefit. At least the computing world would be a better place.
Dealing with this would be more effective than the strict anti-trust and anti-monopoly attack going on in the US courts. It would be treating the symptom not the cause.