Part 51. Water Rights
The rich old man who lived in the Big House on the hill always had the edge. He
would sell off a small piece of rich bottom land to a newcomer, a greenhorn from
the East, or a struggling young farm family. The price seemed very reasonable, perhaps
even generous. The sodbusters would start their farm, perhaps even buying a few
head of cattle in hopes of becoming very successful and prosperous. The old man's
ranch hands seemed ever so helpful and friendly. At least for the first two or three
Then suddenly the whole arrangement changed. Once the few head of cattle had become
a small herd, the cropland had begun producing by the bushel, and the operation
was about to turn a huge profit, the stream stopped flowing. The big rancher had
ordered the water flow stopped on his side of the fence, and now there was no water
for the cattle. In a few weeks they would all be dead, the young farmer would be
ruined, and his family would have to move on to "greener pastures." The
only option was to sell out to the man in the Big House for a few pennies on the
dollar -- unless they were willing to go down fighting against a well-armed band
of ranch hands. Where had things gone wrong?
This is a case of one big operation controlling the "essential facilities"
-- to borrow a legal term -- needed for farming, namely water. If you have land,
water, and labor, you just need to invest in some cattle and grain and you've got
a farm operation. While the land, the cattle, and the grain are one-time investments,
it is the water that is the key ingredient -- the most essential facility -- because
it must be replenished constantly to keep the business growing. That makes the person
who controls the flow of water a very, very powerful person. Some courts now say
*too* powerful. And they have applied this same line of reasoning to the computer
Of course, nobody has seriously made a court case making the "essential facilities"
argument for putting Microsoft products in the public domain -- yet. But it is only
a matter of time. The way Microsoft doles out favors to software startups, and then
pulls the plug in an almost extortionary manner once the money begins to flow into
the fledgling operation, is almost exactly like the rich old man on the hill with
the helpful ranch hands. By changing the software APIs, pressuring partners to alter
their software designs, or flooding the market with a cheap clone of the little
company's product, Microsoft is able to cut off the vital flow of information to
the small-timer. They can either sell out to Microsoft for a few pennies on the
dollar, or fight a losing battle against a well-armed town full of assorted ruffians,
cowards, and stooges who inhabit the software industry.
The Old West is alive and well in the software industry, as bullies in big houses
feather their nests, enterprising newsmen get burned out of their shops (fired for
speaking out against Microsoft), and the sheriff wonders just how far he can go
in enforcing what little law there is. The owner of the water rights in this case
even controls the drinking fountain at the local jail. Did you know that the U.S.
Department of Justice is hiring Windows95 installers?
Most recent revision: April 22, 1998
Copyright © 1998, Tom Nadeau
All Rights Reserved.