Microsoft Ruling On Hold - Still Talking

Bahwi was the first to write with the news that Microsoft and the Government are still talking, at Judge Jackson's suggestion. So, it looks as if a settlement may still be reached.

Re:New concept in Amercian Justice.

Why does it take the threat of a judge making a ruling on a case to actually get these two together and try to work out an arrangement/resolution to this mess?

Because Microsoft had absolutely no incentive to deal until the Findings of Fact were realeased. Then it became readily apparent to them that they it was highly likely that the judge would rule against them. It took that much just to make them consider a deal.

As for saving money, that hasn't really been a concern of Microsoft. They've (literally) spent over ten times as much on this case as the government has. Last I saw (late last year) the government had just topped $10 million. Microsoft was estimated to have spent well over $100 million. Historically speaking, this anti-trust case has been a real bargain for the government compared to previous large cases. If they manage to reign Microsoft in, it will be worth every penny.

I really don't see how Microsoft is going to get any more than a slap on the wrist and told not to do it anymore.

Well, the DOJ tried that already. They got burned bad too. Microsoft laughed off the consent decree last time and I don't think the DOJ wants a repeat performance of something that made them look like complete idiots. That's probably one reason they haven't cut a deal yet. Microsoft has been proposing solutions that weren't any better or more enforceable than the consent decree was.

We could fine them, but how do you financially fine a company that makes 100's of billions a year?

Microsoft doesn't make anything approaching "100's of billions a year." IIRC they made less than 10 billion last year. If you want to punish a company like that, you fine them a whole lot of money. That's not what this case is about and I doubt that a fine will play a significant part in the outcome of the trial, simply because it wouldn't solve the problem. Punitive damages will likely be awarded to those people and companies that sue Microsoft if the judge rules that they broke anti-trust laws.

The remedies portion of the trial is supposed to provide a solution that will allow competition to return to the market. The only competition Windows currently faces is from open source software. If the only way to compete with Windows is to get people to produce a competitor for no charge, the market for that product is screwed up. Commercial companies have all been undermined by Microsoft's dirty tactics. Even when they produced a superior product. Microsoft cut them off from consumers and that was all it took to kill them.

Perhaps Linux will make headway in the desktop OS market. Maybe it will eventually replace Windows altogether. Certain software markets may disappear, but I doubt it. People will still sell proprietary apps and services for Linux. They will still sell customized versions. The market will change, but it won't disappear. Software makers will make sure their software plays well with others, simply because that's what consumers will expect. I think we'll all be better off in that situation than in the current one where the standard is controlled by a single company that isn't averse to using that control to squash anyone that gets in their way or to take over new markets.

Re:Microsoft should want to settle, but the DoJ...

Actually, I do believe that Microsoft and its people know exactly the implications of what they're doing. I don't think any of them are too dumb to realize that they're not 'playing fair.'

I think what's happening is that they're trying to transcend the law in rather interesting ways, and what's most interesting is that, so far, they've been succeeding.

Nowhere in United States law does it say 'you must play fair.' Instead, the law delineates very specific behaviors and intents which are illegal, because vague altruistic laws aren't enforceable -- but the flip side of it is that the more specific a law is, the greater the possibility to find a loophole of some sort. And that's what Microsoft has been doing, redefining terms and feigning confusion just enough to worm its way around the letter of the law, and crying holy indignities whenever anyone dare try to mention the spirit of the law, because Microsoft asserts that its own belief that it's playing nice is just as strong as anyone else's belief that it's not.

So the first thing Microsoft has done is to treat the law as a list of rules devoid of any moral obligation whatsoever. It's kind of like in _The Matrix_, where Morpheus tells Neo that he can gain unbelievable powers simply by realizing that the world around him is governed by rules which can be bent or broken, and that the only thing limiting him is his own set of preconceptions.

And therefore, the second clever thing Microsoft has done has been to realize that laws *can* be broken, and that breaking them doesn't immediately cause the big foot from Monty Python to come down and smoosh them. They are obviously not out to keep their nose clean; they've done a lot of highly questionable things in several different cases, all the way down to destroying incriminating documents in the Caldera case. (I'm referring to the recent incident where a woman employed by Microsoft in Germany, I believe it was, admitted to having deleted a lot of subpoena'ed email at her manager's directive.) What Microsoft is depending on -- and what has so far held up for them -- is that court cases can drag on for years, well beyond any relevancy they once had in the Internet marketplace. Why behave legally today if you can escape punishment for another five to ten years or more, long after the companies which brought suit against you have gone out of business? And who knows, maybe by that time your founder will have donated so many millions of dollars to charities and political parties that no one (and least of all a Republican president) would ever consider continuing a lawsuit against your company? Or maybe the industry will have changed so much that any punishment against you will be irrelevant?

Much as I absolutely despise Microsoft's tactics in its court battles, I really have a lot of respect for their brazen ability to keep using the law to their own advantage. They have *never* admitted one iota of guilt for anything (which is amazing in itself), they've successfully managed to misrepresent the issue to the average American so that it looks like a simple matter of 'freedom to innovate' versus 'heavy-handed government intervention' rather than a straightforward tying issue, and they've managed to snarl up every court case they've been through and drag it on *much* longer than necessary, even while committing barefaced perjury, such as faking a videotape and using it as a 'smoking gun' until they were caught. They've been trying hard to get the judge or the prosecution ticked off enough to make a mistake so that Microsoft can declare it a mistrial and make everyone start all over again. They know, and everybody else knows, that Microsoft doesn't have a legal leg to stand on here; it's truly incredible that they've managed to drag the anti-trust case itself out for an entire year and a half already, where initially people expected it to last no longer than six weeks.

Microsoft is a shining example of modern capitalism, and of the ability of a United States corporation to do anything in its power to enture a good return for its shareholders. Unfortunately, it's showing the bad sides of this as well as the good.

Something smells on DoJ side

Folks,

I personally believe that the reason why Judge Thomas Penfield Jackson is NOT issuing a judgement today is simple: he may have come to his senses and realize it appears that the Department of Justice's Antitrust Division under Assistant Attorney General Joel Klein is NOT wanting any form of settlement.

Remember, Microsoft last Friday made a major offer that should have been the basis for accelerated settlement talks. Yet, Klein and his team at DoJ have thumbed their noses at the offer without even bothering to do a written response back to Microsoft. Given the fact that Judge Jackson wants this case settled and so does his arbitrator (Judge Posner in Chicago, IL) wants the same, the two judges may have just caught onto the fact that much of this case is a political sham by the DoJ as a favor to big donors who are Microsoft competitors. (I'd like to know just how much Sun, Oracle, Novell, Caldera, and Real Networks have paid to Democratic National Committee coffers laterly at fundraisers where Bill Clinton and Al Gore were present.)

In my opinion, a large portion of this case smacks of extortion and political favoritism as some competitors in the software industry are using their influence in the Clinton Administration to use the DoJ to extort concessions from Microsoft.

Two things people forget:

1. The Sherman and Clayton Antitrust Acts were designed to protect _consumers_, not business competitors. I mean, has Microsoft harmed consumers? Has there been a backlash from a vast majority of consumers because they feel they got ripped off? No. Where has the backlash come from? Mostly a small, but very vocal group of Linux users (and that's till a small number of Linux users in general--note that Linus Torvalds is not at the head of this campaign).

2. Both Judges Jackson and Posner are _Reagan-era_ appointees. They are not as anti-business as you think. Judge Jackson could have issued his judgement TODAY; since he didn't, this indicates Jackson has some concerns about just what the heck is going on on the DoJ side.

P.S. You can moderate me down to troll or flamebait status, but given the history of the DoJ in the last seven years intimidating people who criticize the Clinton Administration....

Re:Can't wait to get my hands on the Windows sourc

> But if this actually happened, what would be considered the source code for windows?

It hardly matters. They could release everything, but next year's version will have changes to the API, and next year's version of Office will use the new API, so everyone will "have to" upgrade.

A source release is not going to do anything to solve the problem.

--

Be careful what you wish for...

...you just may get it.

A number of people are hoping for a complete MS breakup of the release of the Windows source.

MS is a huge company. Any decisions that are made will set the precedent for the way the software businesses are run. We will live with the decisions made about this case for a very long time. Let's all hope they are the right ones.

Things may be done today that change each and every one of our lives. Some will benefit, some will suffer.

--

Re:Can't wait to get my hands on the Windows sourc

I would hope that all file formats would get released 100% into the public domain, so that all software instantly becomes Office compatable (okay, given them a few weeks). That will be a major problem for M$, as long as they are forced to keep their file formats open.
Same with their APIs

Just a little hint...

The Office 97 file format (which is the same as the Office 2000 file format, by the way) is available on:

MSDN Library January 1999.

It's also on http://www.wotsit.org [wotsit.org].

Just thought I'd let you know... because it hasn't seemed to be any kind of major problem for M$ so far...

Simon

Can't wait to get my hands on the Windows sources

Here's to hoping that Micro$oft releases their source code to the public.

I'm not sure if I'm in the minority here, or what, but I'm pretty anxious to see the source code for Windows. I think it'd probably be very instructive, even if (as a lot of nay-sayers say) it would be a lesson in what not to do.

But if this actually happened, what would be considered the source code for windows? Windows 2000 has a very different code base than, say, Windows 95 (which is DOS-based); would all the versions be released? I suppose the answer depends on whether they are forced by judicial mandate to release it, or if they release it based on a settlement of their own devising.

darren

Cthulhu for President! [cthulhu.org]

maybe for perjury

Bill Gates could be convicted of perjury if a Court and jury conclude that he knew he was lying in some of his sworn testimony. He did say things that were flatly contradicted by email. If a court/jury considered the email factual, and Bill's "forgettery" unconvincing, they would convict him of a felony.

IANAL, but he's very close to that IMHO. MS did things (forced licencing) that he said in swon testimony that they did not do. I find the email convincing that he once knew. And I find it beyond credence that he forgot.

Re:New concept in Amercian Justice.

If you want to fine them you make it much larger than a couple billion. Then you take the money and pump it into the competitors or perhaps some really nice OSS projects. Imagine just how good linux could become with say $50 billion to spend on getting SMP working *for sure* on say a good sized Sun Enterprise server.

The government may be able to fine Microsoft, but giving the money to competitors or an open source project is not something they can do. It's also in my opinion an extremely bad idea. The last thing you want is the government doling out cash to create a "level playing field". How would they decide who gets the money? What would that do to the stock market? The opertunities for corruption are horrible. Would they give it all to US companies, or share the cash with foreign companies that were allegedly harmed? It would be a nightmare of litigation that would never end.

If Microsoft is ruled a monopoly, the companies they harmed have a right to sue, and I'm sure many will. This case is about how Microsoft may of harmed consumers, not competitors. The government brought this case against Microsoft, not their competitors. If their competitors want to sue them they are welcome to do so.

IMO Microsoft has harmed consumers, but mainly through their abusive pricing mothods and their bundling deals with OEMs. In this case the government seems to be more concerned with protecting the likes of Netscape and AOL than protecting consumers. If the government would quit trying to tell Microsoft how to develop software, and concentrate on their business practices we would likely have a settlement which provides relief to consumers by now.

Re:Settle now, or else.

You are very mistaken. ... You appear to take the stance of the DOJ - you won't consider any offer from MS an acceptable "compromise" unless it makes provision for legal oversight of future business decisions or a breakup. However, that is not a compromise - it is an utter rout for MS.
Those are the range of remedies. If Microsoft loses, there's going to be either judicial oversight of future business decisions(a "conduct remedy") or a breakup (a "structural remedy"). That's what happens in an antitrust case. Look at AT&T, IBM, Standard Oil, United Shoe Machinery, etc. Even the ones that were settled involved judicial oversight of future business decisions.

Furthermore, the judge has delayed the ruling at the request of the DOJ lawyers, clearly indicating that the DOJ believes there is life yet in the settlement process. Or, more cynically, they desire to portray themselves as the wounded party if settlement talks fail (sigh, we tried your honor, but bad old Microsoft...) Either way, the judge is expressing no clear opinion with this latest delay.
Good point. It's only for ten days, though. The judge is keeping the pressure on.

...a monopoly is not intrinsically illegal.
There are many actions that are illegal to take if you're a monopoly, and Judge Jackson's findings of fact show Microsoft taking many of them. There's also the issue of how the monopoly was achieved, again addressed in the findings of fact. [microsoft.com]

There is a provision stating that the DOJ could petition the Supreme Court for direct review, but it is by no means certain.
Congress has enacted legislation before that fast-tracked appeals to the Supreme Court. Remember how fast the first Communications Decency Act case got to the high court? And the DOJ has already indicated they want to take that option.

In a higher court, the debate turns to matters of constitutionality, which Jackson doesn't even have under consideration.
What constitutional issue is there? The Constitution gives Congress the power to regulate interstate commerce. Congress enacted the Sherman and Clayton anti-trust acts long ago, and there have been no serious constitutional challenges to them. Big companies have been broken up before. Standard Oil and AT&T are the biggest examples, but by no means the only ones.

They (sic) are many more (chances for Microsoft) to come should this process be protracted. The story is most certainly not concluded, unless a settlement is reached.
The days when Cravath, Swaine, and Moore could drag an antitrust case out for a decade or two are over. There have been a few changes to the law since then to speed things up.

decision

Microsoft is worried because if the Judge makes a ruling then it is admissible evidence in about 600 other civil cases brought by the companies and people harmed by microsoft. If they reach a settlement the judge's finding of fact are not admissible. So we really want a decision.

It's the Dubya factor...

George W. has made random noises suggesting he'd be friendlier to Big Business. Let's say Judge Jackson slams Micro$oft later this week - it isn't over then. Micro$oft can appeal, and if Dubya's in office (and controlling DOJ, as well as the Antitrust folks themselves - Klein may be *gone* in a year, y'all...), the vigor with which M$ has been pursued thus far may disappear. A settlement, on the other hand, really can't be as easily rescinded or ignored after November if Bush wins.

Don't mistake law for reality - politics play a very, very big role here.

New concept in Amercian Justice.

Why does it take the threat of a judge making a ruling on a case to actually get these two together and try to work out an arrangement/resolution to this mess? Wouldn't it have saved both Microsoft and the taxpayers a ton of money if they could have tried this out in the first place.

OK, that's out of the way (since I know everyone's going to flame it). I really don't see how Microsoft is going to get any more than a slap on the wrist and told not to do it anymore. We could fine them, but how do you financially fine a company that makes 100's of billions a year? We could break it apart, but they would still be owned by the same people and everyone would go on making their profits, just like before. Hell, 3Com/USR/Palm has shown that it can even be a usefull business strategy. So then what? They could force MS to quasi-open source their software but ask Red Hat how terrible that is for business.

Personally, I think that the Justice Department is just wasting time and money really pursuing this.

Flame away... :)

kwsNI

The ideal settlement:

Here is the ideal settlement:

• Dump the top 100 Microsoft execs feet-first into a wood chipper
• Destroy all existing copies of all Microsoft products
• Send anyone who, for some reason, likes Microsoft products to 're-education' camps
• Transform the former Microsoft headquarters into a giant paintball arena

There you have it. Very easy. Have fun, DOJ!

--

Re:Can't wait to get my hands on the Windows sourc

I would hope that all file formats would get released 100% into the public domain, so that all software instantly becomes Office compatable (okay, given them a few weeks). That will be a major problem for M$, as long as they are forced to keep their file formats open.

Same with their APIs.

They SHOULD settle

IANAL. In spite of the apparent upper hand the the DoJ has, it is probably seriously considering settlement for a number of advantages that it has over a court decision:

1) MS cannot appeal a settlement (easily, if at all)
2) The DoJ can get remedies in a settlement (like opensourcing Windows--yuck) that a Judge would be very reluctant to impose.

The problem here is a failure of imagination. The DoJ doesn't really know what to ask for. And MS is naturally stonewalling.

There are no advantages to an imposed decision except maybe the court would be more angry if it were controverted, and might impose contempt penalties quicker.

OTOH, MS has a history of settling, then worming their way around the settlement. That's a big part of why the DoJ dragged them into Court this time. The case is framed as a breach of a previous settlement agreement.

hmm...

Settlement talks have stalled.
(A)bort, (R)etry, (F)ail, (G)rab Hammer?

Re:Question...

Is it possible, under any circumstances, for Mr. Gates to be charged criminally? Is there any crime which he has committed for which he could go to jail?

And why, pray tell me, you are so interested in sending Mr.Gates to jail? He may be very successful and very obnoxious, but these are hardly reasons to incarcerate him. You may think he harmed software development, but that again is a personal opinion of yours and hardly a crime. Besides, there are plenty less successful but just as obnoxious people -- should they all go to jail, too?

Kaa

Re:Settle now, or else.

You are very mistaken.

This is a clear signal from the judge to Microsoft: settle now, or else. He's tried to get Microsoft to settle, even bringing in another Federal judge to mediate, which is very unusual. But Microsoft hasn't been willing to make any changes that would end their monopoly power

I don't know any more than you do what was included in the settlement proposal MS faxed to the DOJ last Thursday/Friday, but rumored inclusions were opening the Windows (version?) source and dis-integrating IE from the OS. These are not concessions that would terminate their monopoly power probably, but a monopoly is not intrinsically illegal. The offer is nonetheless very substantial and would certainly give our competitors a vast advantage over us if it were accepted and drafted into practice.

You appear to take the stance of the DOJ - you won't consider any offer from MS an acceptable "compromise" unless it makes provision for legal oversight of future business decisions or a breakup. However, that is not a compromise - it is an utter rout for MS. Such a bargain does not differ from the DOJ's hardline stance one iota, and no reasonable person could suggest that it would be anything other than capitulation.

Furthermore, the judge has delayed the ruling at the request of the DOJ lawyers, clearly indicating that the DOJ believes there is life yet in the settlement process. Or, more cynically, they desire to portray themselves as the wounded party if settlement talks fail (sigh, we tried your honor, but bad old Microsoft...) Either way, the judge is expressing no clear opinion with this latest delay.

Microsoft has had their day in court, and soon the judge will decide their fate. Only the Supreme Court can override him, (there's a provision in antitrust law that fast-tracks big cases to the Supreme Court, bypassing the circuit courts of appeal)

Again, incorrect. There is a provision stating that the DOJ could petition the Supreme Court for direct review, but it is by no means certain. A district court judge could very well overrule Jackson.

Legal opinion is generally that Judge Jackson has done an excellent job on a difficult case.

That doesn't necessarily mean a superior court will rule with him. Remember that MS and the DOJ have confined themselves largely to arguments on the evidence of the case and a smattering of theory. In a higher court, the debate turns to matters of constitutionality, which Jackson doesn't even have under consideration.

This is Microsoft's last chanced

With this judge. They are many more to come should this process be protracted. The story is most certainly not concluded, unless a settlement is reached.

-konstant
Yes! We are all individuals! I'm not!

Settle now, or else.

This is a clear signal from the judge to Microsoft: settle now, or else. He's tried to get Microsoft to settle, even bringing in another Federal judge to mediate, which is very unusual. But Microsoft hasn't been willing to make any changes that would end their monopoly power. This is Microsoft's last chance. The judge is making them show the world they're unwilling to change on their own. Among other things, that neutralizes many political arguments against a breakup. Microsoft will be looked upon by politicians as a business that refused to compromise and forced the courts to break them up.

Microsoft has had their day in court, and soon the judge will decide their fate. Only the Supreme Court can override him, (there's a provision in antitrust law that fast-tracks big cases to the Supreme Court, bypassing the circuit courts of appeal) and only for serious legal errors. Legal opinion is generally that Judge Jackson has done an excellent job on a difficult case. This case has been so closely watched that any legal mistakes during the trial would have been noticed and widely publicized, so the Supreme Court will affirm.