Microsoft Verdict Vacated

Everyone and their brother sent in this unsurprising news: the Appeals Court handling the Microsoft anti-trust case has overturned the break-up decision. A few story URLs: CNet, BBC, ABC, AP, Reuters, MSNBC. The decision is available in .pdf format. A brief summary: the Findings of Fact (Microsoft's conduct, etc.) are still in place, but Judge Jackson's evaluation of those facts and the penalty he imposed are thrown out. A new District Judge will examine the case, starting from the Findings of Fact. Update 2h later by J : Dan Gillmor's analysis is good. So is this Washington Post column, which is insightful except it doesn't go far enough. It also shows MS CEO Steve Ballmer's attitude even before today's ruling: "Is there any limit to what you think you can put into the operating system at all?" "...as a matter of law, no, I don't think so..."

See?

This just proves me right: Good old-fashioned business sense and innovation is hardly illegal.

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Perhaps the judge knew what he was doing.

I remember that Jackson remarked that he was looking forward to seeing his conclusions reviewed by others.

I also remember that Jackson endured a tremendous amount of beligerent behavior from Microsoft, and some outright lies (something about a video of IE being faster than Netscape, but IE was on a 33.6 modem while Netscape got a 28.8 behind the scenes).

I think Jackson realized that he was no longer in a position where it was even possible for him to be objective, so he threw the book at Microsoft, then tainted his own verdict to force a review.

He might actually be rather pleased at the moment that his findings of fact and law are to stand. I hope these documents condemn Microsoft to severe punishment, regardless of the competence of the prosecutors.

This isn't so bad

The longer this thing carries on, the longer M$ is under the microscope and news headlines repeat and affirm that they are in fact an evil monopoly. Every action that they perform will be set in that light and scrutinized before the public. The biggest success of the case has been changing the public's perception of Microsoft.

Re:Antitrust laws

DISCLAIMER: English is not my first language, if you want to correct my grammar or orthography, you are welcome.

And interesting quote, if Henry Rearden is on trial by having a monopoly, you are right, but if Henry Rearden is on trial by abusing monopoly power, it's another history.

IIRC, it's not illegal to have a monopoly, but it's illegal to abuse of monopoly power. Certainly, Microsoft did that. If they have beaten Netscape fairly, by offering a better product, we wouldn't have been discussing this issue, but MS Internet Explorer became a better product than Netscape much, much after they began giving it away for free, cutting one of Netscape's main revenue streams. Without research money and distribution channels, of course that Netscape's browser will fall behind, just like happened.

About EULA's, how would you refuse to use Windows or Office, if your clients, providers, etc. Require you to do so? It's like if you want to build a house, and need steel, you can only buy steel from Henry Rearden, like it or not, or would you live in a tent instead, just because you don't want to give jour money to him?

Anyway, I agree with you that it's a better remedy to educate people to think and evaluate choices, more than just being following the leader.

Microsoft knew how to play the game

The ruling to split up Microsoft was overturned because the Appeals Court decided that Judge Jackson was biased, broke codes of conduct, and "motivated by a desire to punish the company."

I briefly read through the Appeals Court decision, and I found very little in it actually defending Microsoft's market practices.

Microsoft won because they knew how to play the game. This isn't about right or wrong, it's about Lawyer Vs. Lawyer. Microsoft only had to do three things:

1. Drag the court case on as long as they could, and postpone any verdict as long as they could.

2. Never EVER admit to even the slightest wrongdoing. Vehemently protest even the merest suggestion that anything they did was at all improper.

3. Flaunt the judge at every opportunity. Remember Bill Gates not being able to remember business decisions he made, not knowing the meaning of simple words, and trying to say that Netscape wasn't a competitor? Remember the faked videotape?

The first two tactics worked well for a long time. (Note that even Bill Clinton used these tactics to some success.) But it's the third tactic which cinched the win for them: by basically giving Judge Jackson the finger in court, ANY reaction Judge Jackson had as a result could be blamed on him being biased against Microsoft.

This will have a devastating effect on the software industry, since it's been proven that Microsoft has the money and the resources to buy any market they want to own, and the political power to get away with it. Even if you had the Next Big Idea and a million dollars to start with, how could you even hope to compete with Microsoft once they got wind of your idea and copied it?

We're only now seeing Microsoft begin to notice the free software industry. I don't think it will be long before they find a way to 'embrace and extend,' lock customers into Microsoft-only solutions, and make free software become irrelevant. Nobody thought it could happen to Apple, nobody thought it could happen to Netscape, nobody thinks it'll happen to Linux...

Now, perhaps this dystopian vison will come true

Leslie Walker (of The Washington Post [washingtonpost.com] ) has written a recent column on A future according to Microsoft [washingtonpost.com].

An excerpt: I tried AOL Time Warner's competing "You've Got Lackeys" a few years ago, but found its virtual agents a bunch of weenies. Not their fault. Microsoft wrote code into Internet Windows that tripped them up when they attempted Web chores. No wonder nine out of 10 professionals today subscribe to Microsoft agents.

By replacing competent attorneys with buffoons

It's well known that the Bush administration replaced the entire team of lead attorneys at the justice department with junior lawyers who had never tried a significant anti-trust case. So, while the Justice Department didn't drop the case at executive request, they did manage to replace all competent staff associated with the original investigation with complete incompetents. That's how one kills an investigation behind the scenes. --M

Re:Of equal importance..

Exactly -- they're still guilty. Its only the penalty of being broken up that was overruled.
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You know, you gotta get up real early if you want to get outta bed... (Groucho Marx)

Re:Antitrust laws

The scene is a courtroom, where Henry Rearden, a steel industrialist, is on trial for the sale of his own metal:

Ah yes, Hank Reardon, the character who gave an exclusive distributorship agreement to his mythical metal to the business partner he slept with. That's ethical. Perhaps a little better than Roark, who blew up a building over a creative difference in the design, but still not quite the lily-white archetype of perfection Rand would like her characters to have been (too bad, really, flawed heros are a little more believable). Speaking as both a skeptic and a capitalist myself, you can do far better than Rand, who based her entire philosophy on empty tautology (A is A) and nothing more than ad hominem against her opponents. I prefer Robert Ingersoll for the atheist arguments, James Randi for the skepticism... still looking for a good capitalist apologist, but economics was never one of my main interests.
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Double standard

What amazes me is the double standard we seem to have here about what the courts are "allowed" to be biased towards. Judges often gloat about or cite their "tough record" on crime, occasionally singling out their record of sentencing minorities to harsher penalties than caucasians (*cough*Philadelphia*cough*).

Or what about the 2600 DeCSS case? For anyone who has even read a few minutes of any of the preceedings, it is blatantly obvious that the Judge is severely biased against the defendants. Yes, I know that may get 2600 somewhere in the appeals court, but I can't possibly see a unanimous vote to remand a majority of the case to a lower court.

Yes, *gasp* god forbid we actually say bad things about a corporation or businessmen!! Even if they did blatantly lie on the stand and even bring forth false evidence. MS essentially admitted to perjury (sp?) with their false demos. But how dare we say this aloud?

It's a sad, sad, day when libertarian actually whole-heartedly supports the DOJ is a case against a corporation. Bah.

-jdm

Re:Can someone please explain to me...

Trading of a companies stock is always halted directly after a large news story is released about them (this is why most companies release earning reports after the market closes). The reason they halt trading is so that investors are given some time to think about what they're going to do before they go off and buy or sell.

look out, here comes the innovation!

It will be nice to see a whole slew of new consumer-friendly products from Microsoft now - after all, they're entirely free to "innovate" now. I wonder how many other markets they'll get to consume before the government comes to its senses? If Microsoft is allowed to use the capital amassed from its past crimes to stroll into new markets, almost no industry in the U.S. is safe. It's just a question of "Where does Microsoft want to go today?"

This really was Judge Jackson's case to lose, though - I'm as pissed of about Microsoft as anyone, but you'd think a federal judge would have the sense to keep his mouth shut about his personal opinions of the defendant, and follow the legal procedures entirely by the book. This was only the biggest trial of the decade or so. More than anything, this appeal overturns his handling of the trial rather than the facts of the matter or Microsoft's guilt.

Caution: contents may be quarrelsome and meticulous!

Summary of the ruling

Summary of the summary: Almost all of the findings of fact, and the most damning conclusions of law, stand. The remedy is thrown out. All of the unresolved issues go to a lower court. Have a nice day.

• The court is not buying the argument that antitrust laws are less relevant in the "new economy". (11-13)
• It upheld the finding that Microsoft is a monopoly -- you may think this is obvious, but Microsoft's lawyers tried very hard to redefine "monopoly" in a way that excluded Microsoft, and the appeals court didn't buy it. (19-25)
• It upheld the findings that Microsoft tried to illegitimately maintain its monopoly through its exclusionary contracts with OEMs. The court said that one of Microsoft's arguments in its defense -- that it is merely exercising its rights as the copyright-holder to Windows -- "borders upon the frivolous". However, the court said that Microsoft did have the right to require OEMs to make their machines display the Windows desktop when first booting up a Windows machine. (25-35)
• Microsoft's removal of IE from the "Add/Remove Progams" utility and its commingling of IE code with non-IE code in the same DLL were anticompetitive. However, Microsoft provided a valid technical justification for causing Windows to use IE instead of the user's preferred browser for certain browsing-related tasks, and since the plaintiffs did not try to rebut those justifications, that aspect of Windows/IE integration was OK. (35-40)
• It was OK for Microsoft to offer the "Internet Explorer Access Kit" to ISPs to induce them to support IE. However, its exclusive deals with ISPs that required them to support only IE were not OK. (40-47)
• Microsoft's exclusive contracts with third-party software developers that tied them to IE were anticompetitive, and Microsoft did not give any justification for the contracts that outweighed their anticompetitive effect. The same is true for its deal with Apple, in which Apple supported IE and Microsoft continued to provide Office for the Mac. (47-51)
• Microsoft's promotion of its incompatible-with-Sun JVM was OK. Its deals with developers requiring them to exclusively promote Microsoft's JVM was not OK. (Are we seeing a pattern here?) Likewise, Microsoft's attempt to deceive developers about how using their Java development tools would create applications that only ran on Windows was not OK. And its threats that led Intel to stop developing its own JVM were not OK. (52-58)
• The district court found that aside from these specific acts, Microsoft's "course of conduct" violated the antitrust laws. The appeals court thought that the district court didn't provide enough evidence to support this claim, and overturned it. (58-59)
• Even though we can't prove that Microsoft's actions were the only things preventing Netscape and Java from becoming serious competitors to Microsoft's monopoly, the appeals court said, we don't need to meet such a standard of proof to impose liability on Microsoft. (59-62)
• For the same anticompetitive behavior, the district court tried to make Microsoft liable for both illegally maintaining a monopoly (on the x86 PC OS market) and illegally trying to obtain a monopoly (on the browser market). However, the district court never proved that one company could monopolize the browser market, because they neither defined the market for browsers nor proved that barriers to entry would allow a monopoly browser to maintain its position. Therefore, the appeals court completely reversed the district court's verdict on this aspect of the judgement. (62-68)
• After a long discussion of "tying" in antitrust law, the appeals court decided that a lower court should analyze the question of whether bundling Windows with IE was illegal, and gave instructions for what the lower court should take into consideration when making its judgement on this issue. (68-90)
• Microsoft had complained on appeal regarding both the speed of the trial and the lack of any evidentiary hearings between the finding of guilt and the determination of Microsoft's penalty. The appeals court said the first complaint was groundless, but the second complaint was valid. Furthermore, the appeals court said, the district court hadn't explained how breaking up Microsoft would actually restore competition to the market. The appeals court provided guidlines for a lower court to use in deciding an appropriate remedy; it didn't flat out say "you can't break up the company", but it pointed out that divestiture is usually not the appropriate remedy for this kind of antitrust violation. (90-106)
• Judge Jackson said things in interviews that made him appear biased against Microsoft. He embargoed these interviews until after his judgement was entered, so that Microsoft's lawyers couldn't have challenged them in court at the time they were made -- but at the time he entered his judgement, he was still talking about a pending legal case. Because of this impropriety, the appeals court disqualified Judge Jackson retroactively to the point where he entered his breakup order, but the court did not throw out his earlier findings of fact or conclusions of law (except where the appeals court specifically found an erroneous finding or incorrect conclusion). Microsoft had wanted to throw out the entire decision and start a new trial from scratch. (106-125)

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Re:Of equal importance..

Sigh. Some people just didn't read the appellate finding, apparently. From the document:

In sum, for reasons more fully explained below, we affirm in part, reverse in part, and remand in part the District Court's judgment assessing liability. We vacate in full the Final Judgment emobdying the remedial order and remand the case to a different trial judge for further proceedings consistent with this opinion (Page 7, end of Summary)

Specifically, they reversed the DC's judgment that Microsoft violated part 2 of the Sherman Act, or in other words that they didn't illegally attempt to monopolize the internet browser market. They also remanded to the DC the finding that Microsoft violated part 1 of the Sherman Act, or the unlawful tying of the browser to the OS. The only part they did affirm, and this only partially (with the rest reversed, not remanded) was the violation of part 2 of the Sherman Act by using anti-competitive means to maintain it's OS monopoly. To see what exactly they affirm and what they reverse on that, feel free to dig deeper into the decision.

What this means is that the appellate court DID NOT uphold that Microsoft is guilty of defending its monopoly, and in fact actually REVERSED an important decision necessary to the monopolization case. They've also REMANDED the second Sherman violation back to the district court.

Re:Damn George Bush

Damn strait! I will probably get modded down here, but what is it with this guy? Is he completely out of touch? Every morning I pick up the paper there is some other reason for me to become more and more disillusioned with the current president. He:

1) Appoints a lumber lobbyist to head the forest service.

2) Appoints an extractive industry lobbyist to head the department of interior.

3) Is pushing to reinstate nuclear testing.

4) Appoints John Ashcroft as A.G. Someone who spent a good part of his career fighting against desegregation.

5) His nominee for dept of agriculture one said that that farming areas that are not ethnically diverse are more productive.

6) Backed out of the Kyoto treaty giving even more reasons for other countries to hate the US

7) Is Backing out of the nuclear dis-armament treaty.

8) If any of you have ever been to the unspoiled beauty of Alaska, you will realize why it is completely insane to want to drill there.

9) Repealed the public subsidy against logging roads in national forests. Have you flown low over the west lately? Roads everywhere already!

10) Heres one for the Slashdot crowd: he eliminated protections for those with repetitive strain injuries.

11) Whats with the income tax reduction? The only ones its helping are those that are already loaded. And it is going to make it much more difficult for me to get my portfolio up to where I am loaded with the deficit problems that are going to crop up.

I could go on and on here without even mentioning foreign policy screwups, But that's enough venting for now.

Re:Microsoft knew how to play the game

The ruling to split up Microsoft was overturned because the Appeals Court decided that Judge Jackson was biased, broke codes of conduct, and "motivated by a desire to punish the company."

This is untrue. According to the judgement no actual bias was found or even alleged by MS. Smart move by their lawyers, as appearance is much easier to prove.

The District Judge 's conduct destroyed the appearance of impartiality. Microsoft neither alleged nor demonstrated that it rose to the level of actual bias or prejudice.

The judgement also does not state that he was "motivated by a desire to punish" MS. In fact they were in agreement with most of Jackson's findings. The brunt of the problems came in the remedy phase, where the desire to punish should be implied. His major failing was to publically chastize MS before his remedy had been issued. If he would have kept his mouth shut, MS would have had a much harder time winning this appeal.

Cliff's Notes for the court's ruling:

Here's a quick guide to the ruling as I've read it...

• Upheld MS is a monopoly and abused monopoly powers.
• Stated that the IE intergration claim by the DOJ was unfounded
• Upheld that MS aggreements with Internet providers violates the Sherman Act.
• Upheld exclusive dealings with Apple are excusionary and violate the Sherman Act
• Upheld MS threats to Intel regarding Java support were in violation of the Sherman Act
• Reversed conclusion that MS' course of conduct separately violates Sherman Act
• Found that the plaintiffs did not sufficently define a relevant market
• Reversed finding of liability for Attempted Monopolization
• Heeded Microsoft 's warning that the separate-products element of the per se rule may not give newly integrated products a fair shake.
• Found that DOJ's Tying argument cause severe problems for product innovation.
• neither the use of the summary witnesses nor any other aspect of the District Court 's conduct of the trial phase amounted to an abuse of discretion.
• The District Court erred when it resolved the parties 'remedies-phase factual disputes by consulting only the evidence introduced during trial and plaintiffs 'remedies- phase submissions,without considering the evidence Micro- soft sought to introduce.
• Vacated final judgement and ordered a remedies-specific evidentiary hearing.
• Found that the District Court did not have adequate reason for the remedies it imposed.
• Found that Jackson created an appearance of partiality, particularly during the remedy phase.
• There was not proof of bias, only an appearance, so the entire ruling was not overturned.
• Finally the Conclusion: The judgment of the District Court is affirmed in part, reversed in part,and remanded in part.We vacate in full the Final Judgment embodying the remedial order,and remand the case to the District Court for reassignment to a different trial judge for further proceedings consistent with this opinion.

Umm... It doesn't work that way...

There is this little thing called checks and balances. This was the Judical arm (over which the president has no control) vacating a ruling, because of improper contact between the judge and the media (from what I have read, this is a fairly no-brainer. you have no business as a judge doing media interviews during a trial).

Re:Of equal importance..

Well, that's what it is. If you follow the law and someone else doesn't, they've got the advantage. So you take them to court... They punish them for their law-breaking, AND make them follow the same rules as anyone else.

Everyone loses if this crooked company wins, because nobody will be able to beat them without being crooked, and they'll end up with a monopoly and be ruthless about enforcing it.

Much like a big software company we're all familiar with.

Re:Of equal importance..

Sure there is. Just no flat fee that will affect them.

Let's take the Dr. Dos case as an example. Let's say that they increased their immediate market share by 5% by converting DrDos users. Then, they prevented more from switching by continuing this sort of thing. Figure out from similar markets, how much of their user base they gained only by unfairly eliminating the competition.

So, fine them n% of their earnings from their OS.

Then do the same with Office, etc. See how many people use Office because MS tweaked the OS to hurt competitors. Then see how many people use Office because Microsoft removed OS competitors (and thus the office suites that ran on those other OSes).

Fine Microsoft n% of their office-suit sales.

Etc.

It wouldn't kill them, but a fine based on their ill-gotten gains would be a great punishment. It'd not only hurt them, but it'd be a great incentive for other companies to play fair.

It'd also be a HUGE slap to all the assholes who own MS stock and support them, not because they're right, but simply because it's the best thing for their stock portfolio. I'd *LOVE* to remove immunity, for people who knowingly invest in a company involved in illegal actions.

(Man, just consider the Rambus investors, especially the ones who invested a year ago, when they announced their plans and it was public knowledge how they got their patents... those people deserve a bit of jail time along with the officers of the company, the lawyers advising them, and the employees putting this into effect.)

Re:Of equal importance..

Nope.

I can't point to anything to prove it, but they've done this in many ways. They tweaked Windows 3.x to not run on DR-DOS (Thanks Ethereal for the nitpick).

They broke Lotus Notes in NT4 SP6.

They added delay loops in MS Office for the Mac to prove that Windows was a better OS (See, it runs Office faster).

The deliberate changes to sabotage a competitor are fairly common knowledge. Check google.

Microsoft strategy

Several people have correctly stated that the ruling was vacated versus being overturned. While this is true, it matters little.

Microsoft has always played delaying tactics while they bring other guns into play. For instance, when OS/2v4 shipped with voice recognition software, MS execs went on record as saying that it was just a toy and not ready for the real world (despite others and myself doing a lot of useful work with it). Meanwhile, they are investing boat loads of money into voice recognition software.

Gates has simply taken a page from Kirk's play book. If you can't win under the rules, change the rules.

The ruling has been vacated. How long will it take for another judge to be selected? How long until that judge has reviewed all the documents and issued a ruling? How long before that ruling takes effect? YEARS!! And by the time it's played out, Microsoft won't care because we'll all have been long since forced into paying them to authenticate our Internet accounts through their .NET servers in order to even register to vote.

I can see the seen on that yacht last year like it was yesterday:
Gates: Look, Thomas, I mean, ...uhh, Mr. Jackson, sir. You're retiring in a few years, right? Government service hasn't been all that lucrative for you. I'm not asking for you to throw the case. I'm just asking for you to say a couple things that would cast a shadow on the decision.
Jackson: I will not have you get away scott free, Gates.
Gates:You know we're guilty. We know we're guilty. Hell, everybody knows we're guilty. Your finding of facts were rock solid. There is no way we're going to win this case. All we're asking you to do is make a couple comments so that the Appeals Court will have the case reviewed a little longer. We're trying to get out of the OS business. That should make you happy. We just need a little more time...
Jackson stares at the floor, deep in thought...

Stallman / New terms of punishment for Microsoft

Hopefully now they will give more consideration to implementing some of the measures outlined here ( http://www.gnu.org/philosophy/microsoft-antitrust. html [gnu.org] ) -- more similar to IBM's punishment for unfair practices than to the Bell System's (breakup).

Unfortunately the essential.org article (which was *VERY* good, as good as the Stallman article itself) is no longer there, the staff is working on tracking it down again.

Umm... yes it does work that way...

Checks and balances are all well and good...

Until you realize that the US Government is a litigant in the case. The DOJ is the plaintiff in this case, and the DOJ is part of which branch?

<church lady>
Could it be EXECUTIVE?
</church lady>

Sure, "W" couldn't poke his nose into a case between IBM and Microsoft, but as the plaintiff, the government can decide to forego prosecution any time they want to. If not in fact, then in spirit for certain.

I assume that this won't happen in part because of the consolidation with the 29(?) States' cases, but as they say... I am not a lawyer, so I could be wrong on that count.

Misleading headline

OK, folks, I know you're all just jumping to flame George W. Bush and any other right-wingers you can find, but slow down a second.

What really happened is that the appeals court says that the original judge gave the impression he was biased against Microsoft, due to the nasty remarks he made about the company and the secret press conferences he held. The appeals court then overturned the sentencing portion of the verdict, and remanded the case to a different judge, to craft a new sentence. Nobody's saying Microsoft isn't guilty, they just want a judge who's not biased to sentence MS.

If you remember some of the comments Judge Thomas Jackson made about MS, you'll probably agree he was about as biased against MS as the average Slashdotter. As much as we may think that he was biased "the right way", a judge is supposed to be unbiased, and to allow otherwise is to corrupt the judicial system. This is justice being done (slowly), even if we don't like all the steps along the way.

Besides, who here thinks that just splitting MS in half is the best remedy? Each half will just be as bad as before... I'd much rather see carefully tailored prohibitions against some of the nastier anti-competitive elements of .NET and their new licensing system, and a ban on the embrace-and-extend strategy.

Maybe you think splitting MS is suitable "punishment". But who does it punish? Microsoft itself is a name and some legal documents, and can't feel pain or unhappiness. The executives won't mind, because, with a split, there will be twice as many positions, and all but the most senior execs will probably get promoted. Does Bill Gates care? It would probably hurt his pride a little (about as much as a cream pie in the face), but it's not like he'll end up homeless on the street. Shareholders might get burned. Before you get excited, remember that your grandmother's pension (or yours, or your teachers') may be heavily invested in MS, without their knowledge. Burning MS might also send the tech economy even farther down the toilet. How many more of you want to be unemployed?

Seriously, folks, this is probably just justice being done (very) slowly and carefully, and it's probably for the best, even if it means we don't get the satisfaction of seeing MS split in two.

Somebody is going to mod me down as a troll, because they think that no person in their right mind could be anything but foaming-at-the-mouth anti-MS. Before you do, ask yourself, what contributes more to a debate, a hundred people agreeing with each other, or rational disagreement?

Re:Of equal importance..

Exactly -- they're still guilty. Its only the penalty of being broken up that was overruled.

The problem is that to a corporate entity it dosn't matter if they are tried, it dosn't matter if they are found guilty, it dosn't matter even if a sentence is passed. The only thing which matters is for any sentence to be carried out.
Criminal law is one thing which makes a nonsense of the idea of corporates as "people". A real person would await trial either or in prison or subject to bail, they would have to bring their entirity to court too.
But for a large corporation they can just carry on as usual. A real person couldn't do this, even a moderatly sized business...
So what is the solution; strip corporates of "person status"; halt their operations and freeze their assets as soon as charges are filed; charge Microsoft instead under RICO; etc?

Re:Is Microsoft at all relevant anymore?

Its just illegal to abuse it. So yes, you should care because they matter. The DOJ was real stupid not to go after the OEM deals. But no OEM for some odd reason wanted to testify agaisn't them. Hmm I wonder why.

The whole OEM thing is basically the kind of racket organised crime would love to have.
A legitimate business would say "you can buy our widgets at X amount each, if you buy a lot or buy regularly then the price goes down" (The reason doing that the latter situation means that the suppliers costs are actually less.) It would become a dodgy deal if supplier were to start saying "The price is X if you only buy widgets from us, otherwise the price is Y" or the supplier starts telling you what you can and can't do with them once you bought them. (The MS OEM agreements probably also contain a "if we catch you talking to the cops we cut off the supply" clause.)
The thing with software is that it's not actually a "widget", but suppliers like to sell it as though it is one (the actual cost being very low, especially if it's the OEMs who are printing manuals and pressing CDs.) Whilst at the same time claiming to sell some kind of abstract entity (generally immune to laws governing trade.) You also get things which on analysis are utterly bizare, such as Client Access Licences. Not even the "running a program is copying, therefore copyright applies" kind of logic makes any sense here.

Re:This is a great decision!

Yes, they try to make money. Yes, they try to gain market share. But THAT IS WHAT YOU ARE SUPPOSED TO DO in a free market!

If you have a company which breaks the law they will always appear to do better then honest businesses. If they are not weeded out PDQ then you cease to have a free market.

Re:hypocrisy

Also:

• We vacate the judgment on remedies, because the trial judge engaged in impermissible ex parte contacts by holding secret interviews with members of the media and made numerous offensive comments about Microsoft officials in public statements outside of the courtroom, giving rise to an appearance of partiality.

So do stock market investors not RTFA? MS's stock is up 5%. It doesn't seem like MS is that much better off.
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Why does everyone think this is bad?

Various analysts - myself included - were not happy about the breakup anyway. It actually seemed to allow MS some extra potential for market stranglehold, and on balance - except for legal costs and stock price fluctuations - they would end up pretty much the same either way.

At least they are just one big monopoly that everyone can watch closely, as opposed to a few smaller monopolies in various markets.

They are doing themselves out of business anyway with the rules surrounding XP - all my corporate clients use Ghost for system backups Enterprise-wide and started getting worried when MS discussed unit-specific licensing, yearly software charges and similar issues, not to mention the appalling uptime you get even from an OS as supposedly solid as W2000. Quite a few of them are already rolling out Star Office, and some are seriously considering Linux as next upgrade (even one client with >4000 desktop users)

I use most major OSes for business reasons, and MS for games. It's just not robust/cost-effective/secure enough for today's world.

Not a troll/flamebait - the facts I get from corporations every day support my viewpoint.


Frog51

feel sorry for Americans

Exactly, my thoughts and if you look at history when justice is not done in the courtroom its done on the streets, so the American courts have now given yet another reason for the Tim McVies and Osma Bin Ladins of the world, America is going the way of Rome before it, as a non American I feel very sorry for all the innocents who will be the victims today and tommorrow, goodbye America...

Re:not really

From the decision (pp 10-11):

What is somewhat problematic,however,is that just over six years have passed since Microsoft engaged in the first conduct plaintiffs allege to be anticompetitive.As the record in this case indicates,six years seems like an eternity in the computer industry.By the time a court can assess liability, firms,products,and the marketplace are likely to have changed dramatically.This,in turn,threatens enormous practical difficulties for courts considering the appropriate measure of relief in equitable enforcement actions,both in crafting injunctive remedies in the first instance and reviewing those remedies in the second.Conduct remedies may be unavailing in such cases,because innovation to a large degree has already rendered the anticompetitive conduct obsolete (although by no means harmless).And broader structural remedies present their own set of problems,including how a court goes about restoring competition to a dramatically changed,and constantly changing,marketplace.That is just one reason why we find the District Court s refusal in the present case to hold an evidentiary hearing on remedies to update and flesh out the available information before serious- ly entertaining the possibility of dramatic structural relief so problematic.

The court seems to be directly expressing concern of the effectiveness of either conduct remedies, or structural remedies in such a rapidly changing market. I wonder if the new judge reviewing the case will look at this, and interpret it as, "Hey, find a solution that really does prevent Microsoft from continuing to be a monopoly."

One can hope!
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This may be more about the punishment than the...

comment made by Judge jackson. On pages 10+11 of the brief is this paragraph:

What is somewhat problematic,however,is that just over six years have passed since Microsoft engaged in the first conduct plaintiffs allege to be anticompetitive.As the record in this case indicates,six years seems like an eternity in thecomputer industry.By the time a court can assess liability,firms,products,and the marketplace are likely to have changed dramatically.This,in turn,threatens enormous practical difficulties for courts considering the appropriate measure of relief in equitable enforcement actions,both in crafting injunctive remedies in the first instance and reviewing those remedies in the second.Conduct remedies may be unavailing in such cases,because innovation to a large degree has already rendered the anticompetitive conduct obsolete (although by no means harmless).And broader structural remedies present their own set of problems,including how a court goes about restoring competition to a dramatically ch anged,and constantly changing,marketplace. That is just one reason why we find the District Court 's refusal in the present case to hold an evidentiary hearing on remedies to update and flesh out the available information before seriously entertaining the possibility of dramatic structural relief so problematic.

Now what that says to me is that simply put, the punishment no longer fits the crime. I believe this isn't as big a victory for Microsoft as it originally seemed after seeing the headlines. Look for a more fitting punishment to follow seeing how an Operating Systems company and an Applications company could still control the marketplace in much the same way as it is now. (It could also mean they get off scot free, but I thought I'd look for that silver lining.)

Re:Damn George Bush

So I can blame any bad judicial decision in 1992-2000 on Clinton? Cool, because there were a lot of rather activist decisions in those times that (I feel) had nothing to do with justice; now I have a scapegoat. (Hey, it's the childish/ignorant way!) It's a lot easier to blame a figurehead, isn't it?

Re:Damn George Bush

So enlighten me. How, precisely, does the executive branch of the US government overturn a case? I don't know about you, but I read "Appeals Court" in the summary, which is probably still judges left over from the Clinton presidency.

Re:Of equal importance..

Its only the penalty of being broken up that was overruled.

In a way, a small part of me is somewhat glad that they won't be broken up anytime soon. Now, if/when Linux succeeds, people won't be able to say it was ONLY due to the breakup of the giant. At least the court trial gave us a few years where MSFT had to behave, so we could help spread the good word in a fairer playing field.

Besides, I think the breakup was the wrong punishment for MSFT's actions. I don't think it was painful enough.

__ __ ____ _ ______
\ V .V / _` (_-&#60_-&#60
.\_/\_/\__,_/__/__/

OH GREAT!!!

Now they can build hotels on Boardwalk.
Jason

Most importantly...

It's not over yet, the most important part is tucked away on page 123 of the brief.

Given the limited scope of our disqualification of the District Judge,we have let stand for review his Findings of Fact and Conclusions of Law.

This means that the Findings of Fact (the abuse of monopoly power) still stand, and the case is only subject to review in terms of penalty. The case is being turned over to another judge at the circuit level, and if that other judge reccommends that MS be broken up (more likely he would rec. a lesser penalty) the break-up may still come to pass.

The question implies that there is some middle ground,but we believe there is none.As the rules are written,district court fact findings receive either full deference under the clearly erroneous standard or they must be vacated. There is no de novo appellate review of fact findings and no intermediate level between de novo and clear error,not even for findings the court of appeals may consider sub-par.

This section essentially says that while Judge Jackson's statements showed a bias, the facts still show that MS broke the law. (It says a lot more, but essentially says that the facts are still there, and MS cannot dispute them).

Essentially what this biolds down to is that the Findings of Fact stand, but the Conclusions of Law (the breakup order) show evidence of judicial bias, and as such will be submitted to another judge to determine a new conclusion (ie: may issue a new breakup order, order release of code, pay a fine to gov't, etc.)

Hope this helps. While I'm not a lawyer yet, IP, antitrust, and constitutional law are in my field.

Re:Damn George Bush

Oh, and Algore would have been better? Give me a break.

I could come up with a list of thing I wouldn't have liked from a Gore administration, and I'd be just as upset as you are about Bush.

The neat thing is that neither your party or mine really gives a damn about us. All they really care about is taking more freedom from us and making the government more powerful, only from different directions and in different areas. But, its all bad.

Re:Of equal importance..

... and although another court will decide what remedy is necessary in this case, that other court could also decide Microsoft should be split up. It simply gives MS at not being split up, but in the end this appeal may have no effect.

hypocrisy

From the BBC article

On Thursday, the federal appeals court said: "Although we find no evidence of actual bias [in the earlier ruling], we hold that the actions of the trial judge seriously tainted the proceedings before the District Court and called into question the integrity of the judicial process."

The decision to reverse the earlier ruling was unanimous, by a 7-0 vote.

So just because it made the judicial system look bad, and despite the fact that they found no evidence of bias to support Microsoft's claims, they overturned the decision anyways in the interest of maintaining integrity in the judicial process?

this means...

lookout for riots and looting on the streets of San Jose and Austin tonight.

Re:OH GREAT!!!

"Not while I hold Park Place"

-L. Torvalds

This is a great decision!

Slashdot readers in general surprise me when talking about Microsoft and its anti-trust case. This is because these readers, in general, should be very aware of the great success of Linux. Most of us know that Linux is a superior operating system compared to Windows. Most of us have seen Linux steal significant media attention and market share from Microsoft in recent years. This happened because America is a "capitalistic" country (only about 50% capitalistic anymore [http]).

You see, because of the free market, people all over this country have switched to Linux. Nobody forced them to do so... they do so because Linux is better for what they want to use their computer(s) for. Unfortunately, for the average (i.e. dumb) user, Windows is still easier to use and more convenient than Linux. We are working to change this, but at the current time, the average person that uses Windows will tell you that, yes, it sucks (i.e. unstable, slow, etc), BUT these they are willing to live with these problems for the ease of use.

Yes, Microsoft is a giant. Yes, they try to make money. Yes, they try to gain market share. But THAT IS WHAT YOU ARE SUPPOSED TO DO in a free market! If businesses didn't try to make money, we would still be riding trains everywhere and building our own homemade computers.

Microsoft WILL fall by the way any company in a free market falls... by a better product taking away their market share! You can't expect this to happen overnight, as Microsoft has a HUGE userbase. And, in my opinion, they are still the best product for some people.

So, how can you, after seeing how the free market has allowed Linux to come in and cause serious damage to Microsoft's server market share, go crying to the government to interfere with capitalism at work and manually break up Microsoft?? The truth is that Microsoft is the BETTER product for many people to this day... and that probably pisses you off, and you don't want to accept it.

I hate Microsoft. I want to see them fall as much as you do. However, when they fall, I want them to KNOW that it was Linux that took them down... that it was a better product developed through the use of open source, that took down the giant! If the goverment goes in and breaks them up before we win, then they will just blame everything on the goverment instead of Linux. In 100 years, it will be the government that stopped Microsoft, not Linux.

We are making such good progress, why would you guys want the government to stop the war when we are on our way to victory?

I have never been FORCED to give Microsoft any money. In fact, the only person that has EVER forced me to give them money is the government via taxes (one of these days, I'm sure I will be robbed, but not yet). In fact, I don't think ANYBODY has been forced to give Microsoft their money... yet Microsoft takes in tons of it. This must mean that there are still tons of people that CHOOSE to give them money for one reason or another. We need to find these reasons and stop them ourselves.

The government is NOT the answer!

Some of you have the illusion that you (or anybody else) were forced to give your money to Microsoft. If you think so, post a reply and tell me how it happened, and we'll see if we can see how you were forced.

Nasdaq halts trading of MSFT today.

After the news broke, Nasdaq halted the trading of Microsoft on the market. Yahoo finance [yahoo.com] had a really quick quip about it... does anyone else know why they did such a thing?

-gerbik

Of equal importance..

Is that the appeals court upheld that Microsoft is guilty of illegally defending its monopoly. This clears the way for a whole slew of lawsuits.

Re:Good, maybe next time they will find a real jud

"obvious bias" only counted outside the courtroom, IMHO. Jackson has a history of dismissing his own experts if their testimony makes no sense -- ask a perpetual-motion pusher named Joseph Newman how he was supposedly screwed by Jackson.

I've gotten the sense that Jackson is actually quite conscientious about his work. In the above-mentioned case Jackson threw out the testimony of an expert witness that claimed Newman's suspiciously efficient electric motor generated more power than it took in because it simply didn't make any sense scientifically. What killed him was his inability to keep a poker face about the situation, which in practice is probably rather meaningless but still doesn't look good in public.

/Brian

not really

The order is not quite being interpreted the way everyone says it is. According to the legal commentary I heard on NPR this morning on the way to work, part of the reason for throwing out this remedy is that they didn't feel it would prevent Microsoft from exerting its monopolistic strengths in OS and Browser markets even after the company was split in two. They have asked for a new court to come up with a remedy that should actually weaken Microsoft's position with regards to its control of these markets.

Hello! This is NOT surprising.

The minute GWBush hit office, energy companies serving California's newly-deregulated market somehow are able to raise their rates thousands (and, in some cases, tens of thousands) of percent, despite flat demand and supply, and relatively low petroleum prices, in the winter, when power use is at its lowest. Does the Bush antitrust team so much as bat an eyelash? Clear its throat? Shift slightly in its seat? No. If blatant monopolists are treated this way, M$ can do anything it wants and get away with it.

Re:Summary of the ruling

The IBM thing is a salient point, however I don't think it went down the way you said.

IBM was getting Windows 3.1 for $11/copy, an amount substantially less than other big OEMs were paying for it. They were also getting DOS for free, of course, both the result of the 1991 IBM-MS "Divorce" which gave both companies rights to all OS products up to that point.

When Windows 95 was released, Microsoft wanted to put IBM on a similar price schedule as Dell or Compaq. IBM balked because they were used to getting Windows on the cheap, and maybe rightly so because they did have ownership of the old Windows code still in 95. This lead all the way up to the Win95 launch party with no OEM agreement signed between IBM and MS.

Microsoft offered to continue a substantial price break if IBM de-emphisized OS/2 (something they probably had already made the internal decision to do anyway -- for example they stopped pre-loading it on all business systems in 1994).

So, a fishy deal, but more of a pay-off on Microsoft's part than a punishment, and a little bit of hard-ball on both companies' parts.

Decision was not overturned!

This decision was not overturned. It was vacated. All this means is that another judge will review the findings of fact and the original ruling, and a new penalty will be considered. The lower court (not Thomas Penfield Jackson) may decide that MS should be broken up anyways.

Re:Of equal importance..

No, the court has decided to send the case back down for the *punishment* to be reconsidered...

No, the Court has decided to send the case back down for the remedy to be reconsidered.

In antitrust trials, the guilty party is not punished (that's what civil cases are for). Rather, the goal is to do only as much as is necessary to restore competition.

Re:Damn George Bush

Not that any judges except Jackson himself are to blame. If he had acted a little more like a judge deciding a major case, and a little less like an instant celebrity, the decision may have stuck.

Thankfully they have not vacated his findings that they have used their monopoly power illegally, only that his remedy is to be reconsidered by another lower court.

There is nothing to say that the next lower court can decide on the same punishment, or something else entirely. At least that was my understanding from the clip I read at www.salon.com.

Re:OH GREAT!!!

Believe it or not I really think the Boardwalk is to Park Place as Microsoft is to Linux is a pretty good analogy.

Whoever controls both dominates the board and anyone who even comes close to their area(even if all the other squares on the board represent embedded systems, mainframe systems, etc and aren't subject to control by either of these entities) will be breaking out in a cold sweat. There is a term in the business world, it's borrowed from physics, but it's devestating nonetheless. Leverage. And everyone remember, the odds of landing on Boardwalk are the same as landing on Park Place(assuming no improvements on either), but there is a large differential between the payouts for each action. And as much as we'd like to think it's not about the money(it's about the ideology or it's about freedom), wake up, it's about the money.

Steven

Grrrrr. This is all about an ignorant public

I just saw the news on cnn [cnn.com]. Basically to top it off close to %80 of all internet users support microsoft which is supprisingly higher then the national public. I always assumed ms supporters were just ignorant but I guess not. The poll continues showing that %76 of americans believe Microsoft is healthy for the IT industry and I assume the number is higher for tech savy internet users who use ms office/IE everyday.

What does this have to do with the appeal?

The answer is simple. With numbers like this the government will look bad picking on poor old Microsoft and Americans will likely be upset if they are broken up. The oil companies in charge of the energy crises are huge target on the governments list because Americans care. They do not when it comes to Microsoft or they actually support them.

We slashdoters may know better but barely half of americans even believe [cnn.com]ms is a monopoly? Even those who think MS is, believe that its a good thing for the industry and economy. How many of you written politicans argueing for breaking them up? Now how many of the vast majority have written politicans demanding to leave poor bill alone for innovating? My guess is a hell of alot more. I except the poll results to show on cnn website soon since I just saw it on television. Otherwise I would of put a direct link

The justice department is just reacting to the public's perception of a great innovator who is unfairly being picked on by an intrusive government for making superior products. We all know some of microsoft's tricks on how to cripple other companies rather then competing but the public does not know this or care sadly. The bush administration will likely be largely infleunced by opinion. By the way many conservatives like Orin Hatch and Barr support breaking up Microsoft but know that the public perception is agaisnt them so they will not recommend an injunction agaisnt them to Ashcroft. Its not Bush but the american public and also the republicans hate government interaction.

Re:Of equal importance..

It'd also be a HUGE slap to all the assholes who own MS stock and support them, not because they're right, but simply because it's the best thing for their stock portfolio. I'd *LOVE* to remove immunity, for people who knowingly invest in a company involved in illegal actions.

Um, I think it's the responsibility of the management to make sure the company is complying with laws, and that of the board of directors to fire management that breaks laws, and the stock holders to make money while laws are broken and lose it when they are fined for breaking laws. I'd hate to get fined if a company was prosecuted for a crime, and I happened to own stock through a mutual fund.

Besides, I like to follow the strategy Neal Stephenson mentions in Zodiac: buy one share of stock from companies you think are doing bad things, so that you can get the financial statements and other investor materials. They make for interesting reading when you have your cynical glasses on.

Appeals Court upholds that Java isn't for Apps

Every Linux Geek should read the decision, both so they know what they are talking about, and to recognize Microsoft strategy when they see it. Microsoft is still very clever and plays good strategy, and we should be aware of it...

In the first few pages (around page 19), the decision reports that the Appeals Court upheld that MiddleWare would not count when determining that Microsoft was a monopoly. Microsoft defined middleware as any system that supplied an API for applications programming (Java was an example). If the middleware layer became an industry standard, then the API could be mapped to other operating systems, making Microsoft's monopoly irrelevalent. Application designers could write an application, using the API, that ran on Windows as well as other operating systems, and consumers could then move to another operating system with a significantly lessened cost-of-entry. Thus, Microsoft would be unable to leverage it's monopoly power - the market would take care of the remedy. With increased processing power making indirect APIs more attractive, Microsoft thinks this is a real threat.

The Appeals Court upheld what we all know - the current middleware software (Java et all) isn't good enough - you can't write a fully portable, fully powered application on top of it. Thus, it doesn't factor into the court's decision that Microsoft is a monopoly.

So, what does Microsoft do? They try to invent an API that is powerful enough - .NET, C#, and the rest. Why? For one, if it is standardized, then Microsoft could claim anyone could make a .NET clone, it's just that consumers and developers, acting as consumers with full market knowledge, yada, yada, decide to purchase the superior Microsoft produce. Freedom to Innovate. Checkmate, bastards.

What if they don't buy it, and split the company up anyway? Well, Microsoft, while it was one company, already created the application-to-operating system interface, and can seemlessly use it as two companies. Plus, they can port it to other systems, and leverage their market share on office applications in other markets.

So, yeah, I expect a Linux port of C# and .NET in the works, although it may not be released until the last second, and will be a business and legal win for the company. In time, your grandmother (or, by that time, your mother) will be running Linux on her home system - but it will be the Microsoft distro, running .NET and Passport.

Monopoly chances.

That's not precisely true -- merely assessing each as a square along the playing board doesn't factor the various non-dice related influences on board position. The odds of landing on Boardwalk are of course much greater (according to one analysis, Boardwalk is the 18th-most-landed upon property, whereas Park Place is 33rd.

For more detail, see http://www.tkcs-collins.com/truman/monopoly/monopo ly.shtml [tkcs-collins.com].

Re:not really

You can't open source the windows source code without compensating MS.

Sure you can. Make the remedy a fine, and set the fine for anticompetitive practices exactly equal to what M$ wants to charge for the OS.

Not surprising, but not even near finished...

As was said on the MSNBC article covering this ruling (or rather, it was a link to other antitrust cases in history, eg: AT&T, IBM, etc) these cases are usually drawn out for DECADES before they're either given up or ruled on. IBM's case started in 1969 and didn't end until the 80's, and AT&T's case lasted almost as long too. Considering Microsoft's case started in 1998, we've got atleast 8 more years of this in the courts before they get around to doing something meaningful..

The thing that's really too bad is Judge Jackson did this to himself-- if he'd kept his mouth shut, not appeared on TV and in the media making public remarks about the case, there's a decent chance he'd have atleast been able to continue presiding as Judge over the case. Now they're handing it to a different Judge, possibly one that will be more in line with what Microsoft's lawyers want.

Re:Decision was not overturned!

More than just vacated, the Appeals Court actually agreed with part of the monopoly findings of Judge Jackson. This is not a reversal in the "overturned" sense, and I wish the media stopped portraying it this way. To quote from the Court's Conclusion:

"The judgment of the District Court is affirmed in part, reversed in part, and remanded in part."

What is being missed is the clear statement of the court that it has "affirmed in part" Microsoft's monopoly status. Given the past rulings of this Appeals Court, if even they have found Microsoft guilty of monopoly abuse, Microsoft is pretty much in big trouble.

What the court really wanted here was for something as big as a breakup ruling to rest on a respected, even-handed judge. Judge Jackson was a little hot on the trigger for a Federal Judge trying a case of this magnitude. That's one of the reasons the Supreme Court didn't take the fast-track appeal. The courts generally (though not always, as in the Infamous Chad of 2000) prefer long, drawn-out, even-handed justice.

So what can we expect to see now? There will probably be a retrial just as was commanded by the Appeals Court, and a judge who is a little more level-headed than Jackson. The court will still most likely find Microsoft guilty, and demand some pretty hefty penalties. An Appeals Court will more likely approve of this new trial, so Microsoft has less chance of winning the next appeal (though they didn't really win this one).

One word on settlement: the settlement issue isn't just up to the DOJ; this is a state-sponsored case as well. Even if the DOJ decides to settle, the states could still pursue their own case. Even if you get everyone to agree to the same settlement, as was done with the Big Tobacco litigation, it still is rife with difficulties and challenges. Also, that litigation was made with an entire industry, not just a single company.

Justice will come. Sometimes it takes time. Be patient, and Microsoft will get its due.

Re:Of equal importance..

Consider W. wishing to settle with Tobacco.

Does anyone really expect Ashcroft to pursue Microsoft?

As I read it:

Deputy Atty: There's still blood in the water, shall we go after them, Mr. Ashcroft?
Ashcroft: Oh, I think they've learned their lesson, if we can't trust Mr. Gates, whom can we trust? He just wants what's best for America, just like the President does.

Meanwhile, in Redmond...

Bill Gates: Smithers, did our monopoly crush that small yet promising software company and put all it's people out of work and into homeless shelters?
Smithers: I believe so, Sir.
Bill Gates: Excellent.

--
All your .sig are belong to us!

No evidence of bias, but a taint nonetheless

The appeals court vacated the verdict because there could be the appearance of bias in the matter. Yet they said they found no actual evidence of bias in the case. This is what many of us predicted would happen. The case itself was solid (and yes, I read every page of what Jackson wrote). But Jackson then went and shot his mouth off, saying the kind of stuff we all say from time to time.

There you have it: The case was vacated because Jackson said some commonplace things. Being a judge, he used bad judgment, for he needed to appear to ride above such matters. But the fact is that what he said is what pretty much everyone in the computer world knows to be true. It is so obvious that MS is a monopoly it's not worth discussing. When Jackson said something along those lines, he doomed his verdict.

Still, it is interesting that the appeals court couldn't actually find evidence of bias in the ruling. They just didn't like what Jackson said on his own time. And you know that MS hired plenty of guns to find bias anywhere they could. They failed. MS is a monopoly, and there was no official bias. Merely unofficial bias. Just as we all have.
________________

Alright Linux, now is your time...

The important battle was still won.

The important battle was the one that got IT managers looking at alternatives instead of blindly choosing a Microsoft product.

The important battle was one that got Microsoft's internal documents out on the Internet for all to see and read. These showed how Microsoft's goal was domination with IE. (Never mind that, in the end, they did make a better browser than Netscape.)

The important battle got Linux thousands of headlines and millions of dollars in IPO money and venture capital.

The important battle was the one that got the phrase "open source" in the vocabulary of millions of people.

The important battle was the one that IBM joined -- Linux as a viable server alternative.

The other important battle was the one that got embedded Linux rolling. I love my TiVO, and I don't have to worry about anything dealing with regular Linux -- I can just sit back and let it record for me. That's what consumers want, and Linux delivered.

Folks, it ain't over. Linux has the mindshare now. Linux has IBM. Microsoft has been forced to make a really stable OS (2000) to compete.

Competition is a good thing. Microsoft sees the threat on its horizon. Even if Linux dies (which I don't think it will), Microsoft will have changed dramatically. Microsoft now is competing on features and stability, not on "well, everyone buys our product anyway, so we can afford to make it crappy."

In short, don't forget how far Linux has come, or how far it can go. Don't get caught up in these "anti-open-source" agendas; they are meant to take away from the real issue. Some of the best programs in the world are released as open-source, some are not. It's not the issue. The issue is that Linux/Apache/etc. has started to be taken seriously. This is a good thing.

Good, maybe next time they will find a real judge.

Face it, the Judge lost the case, not the prosecution. If he wasn't so obviously biased in his choice of Court advisors, allowances to the prosecution, or flapping his big frigging mouth off after the trial but before the ultimate resolution.

The fact is Justice should have pursued this when it really mattered, back when 95 was coming onto the scene. Back when there were alternatives to Windows on the desktop.

If they want to help the computer industry now they need to fight to ensure there remains competition in the server side of the market. (the desktop war is over, the victims have already been buried)

Get some regulations out there to protect the privacy and information of individuals. Protect their freedom on the net by preventing companies from locking up the world.

PS: It didn't hurt MS's case that Netscape/AOL merged with Time Warner, kind of rendered a lot of the future predicitions made by prosecution pointless.

Re:Damn George Bush

Who do you think nominates judges to the Supreme Court? Any judge who wants to further his career does whatever he thinks will please those who will make or break him. Believing that the executive branch has nothing to do with this injustice is childish and ignorant.

Thank you for expressing something that I wrongly assumed the average Slashdot reader would understand. In addition to that, Bush cut funding for the Justice Department efforts and gutted the legal team assigned to the case.

Re:Oh joy

Yes, I do. [commoncause.org]

And I most likely 'conveniently' overlooked money (bribes) from those companies, because they were 'conveniently' not the topic. It's all a giant conspiracy. John Katz is my gay lover.

If you want to look up contributions on any company or organization, you can also go here [tray.com]. But you could've also looked them up on the sites I originally linked. Apparently while I was conspiring to keep you from finding out about other companies and their contributions, I overlooked the fact that I was linking a search engine that can be used to find contributions of any company who's name you enter. Doh!

Re:Oh joy

Exhibit-A [opensecrets.org], Exhibit-B [commoncause.org], Exhibit-C [mpinet.net].

Re:Of equal importance..

Corporate officers have sometimes gone to jail for antitrust offenses. Of course, that was when the Justice Dept was run by people who believed that the rich _could_ be criminals...

Re:Summary of the ruling

Sounds pretty sensible. The browser-tying dispute should _not_ have been the centerpiece of the case, since what actually belongs in an OS is pretty subjective, and it's probably impossible to _prove_ that there was no legitimate reason for MS to tie IE into the OS short of finding a memo from Gates to the effect "there's no technical reason for this, but we need to get IE so entangled with Windows that it's impossible to separate them and Judge J can go whistle..." So the new trial judge has specific instructions for how to adjudicate this -- if anyone still cares to argue it is a violation. IMO, all the attention given to that just obscured the solid parts of the case, such as all those exclusionary contracts. Do three different exclusionary contracts constitute a "course of conduct" in violation of the antitrust laws? It would seem so to me, but it's basically a matter of the trial judges opinion, and since Jackson showed apparent bias, of course that question has to go to a different trial judge. And finally, the breakup proposed does give the appearance that Jackson's anger at MS has overridden his good sense; it is probably excessive punishment for the offenses (other than dissing the Judge!), and also probably ineffective in actually correcting MS' behavior.

One thing I haven't seen mentioned in any of these summaries, which IMO was the "smoking gun" in the Findings of Fact if there ever was one: IBM was once selling both Windows PC's and a competitive operating system, OS/2. Microsoft asked IBM to reduce their advertising of OS/2, and delayed giving IBM advance technical details of the next Windows release until IBM complied. The punishment for trying to sell another (and maybe technically superior) OS was go through the pre-Christmas sales season with an obsolescent version of Windows on their mass-marketed PC hardware. This was using an existing near monopoly to destroy competition, period, and it is illegal for a company that dominates the market.

A little point about antitrust law as I understand it. (IANAL.) If you don't dominate the market, you can legally be much heavier-handed than MS; for instance, notice how a (major brand) gas station doesn't sell _anything_ that competes with (major brand) products. But since no one company has even 50% of the gasoline market, no one has a monopoly, and if a station operator doesn't like Mobil's deal he can just make a deal with one of the other companies. (But maybe someone ought to look into why it seems to be the same deal no matter which brand of gas is involved.) Apple, OS/2, Linux, and BEOS all together don't offer a large PC vendor enough sales that they can afford to have Microsoft "losing" their orders, so the vendors all get in line...

Re:so get it right this time

While you're dreaming, how about 4 pieces: OS, GUI, office, network? The only thing really wrong with DOS 6.22/Windows 3.11 was limited support for 32 bit programs -- so if you think the court can untangle IE from Windows, let them also split out a 32 bit kernel from the goddammed bloated Windows system...

The real problem, is it isn't up to "us" to nail them, it's up to Junior's Justice Department. You think they are going to go aggressively after one of the biggest Republican campaign contributors?

However, because the finding of fact was upheld, it should make it easier for various companies that think they were harmed by MS's anticompetitive actions to go to court themselves and collect damages. This might be a bit like trying to weaken an elephant by turning loose a batch of mosquitos to suck its blood, but it beats waiting for Ashcroft to go out there and say "Bad Elephant! If you trample another crowd to death I will have to beat you with this feather!)

Life goes on...

After checking all the links on the story to get all the info, I decided to check www.microsoft.com to see what the company itself had to say for its victory:

'Save $50 on Office XP'.

Oh, and by the way , you can get yourself cool 'Freedom to Innovate' support-microsoft t-shirts if you follow a link. Can't get that at ThinkGeek, huh?

Worse than the goatse image...

bbc leader image [bbc.co.uk]
Jesus, that's tasteless.
THL.
(I mean 'leader' as in the story leader, not 'take me to your...')
--

The trial IS the punishment

In cases like this, the decades-long trial can achieve the goals of the prosecutors.

I worked for IBM briefly in the 80's, and I could see that their anti-trust trial was putting a real drag on their operations. For example, every scribble we jotted down onto a scrap of paper had to be copied and saved on microfilm in case it was needed as evidence. Things like this tend to put a damper on productivity. They were also very timid about enforcing patents during this time, allowing competitors like Compaq to spring up out of nowhere.

Over time, the trial adds enough friction to the business to allow others in the market to catch up.

The real question is, with the new administration, will they keep the trial going. It looks like they'll go for an early settlement instead, thus greatly reducing the 'punishment'.

Antitrust laws

A note, first: This is NOT in support of MS - it is an attack on the case against them, but it is NOT in support of them.

Antitrust laws in and of themselves are flawed and are flagrant violations of the U.S. Constitution. They were originally designed to halt the advance of railroad and timber companies run by men who were seen as 'robber barons' - to paraphrase a famous rebuttal of that idea, I pose the question "If they were robber barons, why did they create? A robber does not create. A robber steals. But if they're creating, then it's not theft - if there was nothing, before they created it... what then is there for them to steal?" The problem I have with this antitrust suit is that they are being pursued for being successful - the arguments used against them have little technical merit, and are based soley on the interests of their competitors. Bundling software? Well, it is their product, their effort. Let them do as they please.

Now, don't get me wrong, I have no love for MS, their operating procedures, or their products. I'm simply saying that litigation is not the answer - educating the consumer is. Microsoft is successful because the general computing public does not know much about alternatives, nor even about what is specifically wrong with MS's products. That is changing, slowly but surely, and I suggest the idea that MS is creating its own demise with these invasive technologies such as 'smart tags' and these software registration hoops we're being asked to jump through. The market will regulate itself, people will, if educated, make better choices, they will, often as I've discovered, willingly take the extra time and energy to learn a more complex, less 'fancy' operating system - for the simple purpose of avoiding MS's inherent malfunctions, both in terms of software quality as well as software function insofar as privacy is concerned.

For those of you who think the government needs to protect the consumer, I suggest the idea that you are right - inasmuch as the government should punish fraud, breach of contract, false advertising, etc - but not to the extent that they actually retain a grip on what products and services we have available to us. Has MS committed fraud? I'm sure they have, although I have no direct example to give. Has MS advertised falsely? Indeed, I remember a couple of MSN commercials a couple years ago that were blatantly false, promising faster-than-56k on 56k lines etc. Has MS broken contracts? Microsoft has no contract obligations, they produce a product and the consumer is the one who signs the contract, aka the End-User Licensing Agreement. The EULA even frees MS from the responsibility of technical support, bug fixes, etc. Sue MS all you want, but if you do so, use proper legal grounds - sue them for what they did wrong, not what they did right. Slackware and Redhat and all the other Linux distributions participate in 'bundling', providing media players, web browsers, online help systems, even supplying some packages that notify the package maintainers every time a new installation comes online (example: pine). Are any of these really bad things? No, they're GOOD things, good for me and good for you and good for the software developer. The only difference is, MS's bundled software is all made by MS - and that is not in itself bad, the only bad part is that most MS code is of low quality. And let me note the fact that MS has been defending themselves on the wrong grounds - they claim they have not broken antitrust laws. What they should be doing is following Gates' viewpoint, that antitrust laws are unConstitutional, and then attempting to prove so by way of Constitutional scholarship.

What I'm saying here is that when government sues corporations for crushing their competition, they're really suing them for being ultra-successful. The government should be harrassing MS right now - but not for the things it has chosen to attack. I want MS to win the court case, and I want it for the simple fact that I want what is right. The truth, no matter how hard or brutal, is preferrable to any false bed of coushions. MS is dooming itself to massive revenue losses, the drop of the value of MS stock, and the disfavor of public opinion, as it bludgeons its way down the road it has chosen. Let the consumers and the market as a whole regulate MS. I quote Ayn Rand, from Atlas Shrugged - as an attack on antitrust laws, not as a defense of MS:

The scene is a courtroom, where Henry Rearden, a steel industrialist, is on trial for the sale of his own metal:

Judge: "Are we to understand that if the public deems it necessary to curtail your profits, you do not recognize its right to do so?"
Rearden: "Why, yes, I do. The public may curtail my profits any time it wishes - by refusing to buy my product."
Judge: "We are speaking of... other methods."
Rearden: "Any other method of curtailing profits is the method of looters - and I recognize it as such." ...

"No, I do not what my attitude to be misunderstood. I shall be glad to state it for the record. I am in full agreement with the facts of everything said about me in the newspapers - with the facts, but not with the evaluation. I work for nothing but my own profit - which I make by selling a product they need to men who are willing and able to buy it. ... I am rich and I am proud of every penny I own. I have made my money by my own effort, in free exchange and through the voluntary consent of every man I dealt with... the voluntary consent of those who work for me now, the voluntary consent of those who buy my product.... Do I wish to sell it at a loss or give it away? I do not. If this is evil, do whatever you please about me, according to whatever standards you hold. These are mine. I am earning my own living as every honest man must. I refuse to accept as guilt the fact of my own existence and the fact that I must work in order to support it. I refuse to accept as guilt the fact that I am able to do it and to do it well... I refuse to apologize for my success, I refuse to apologize for my money. If this is evil, make the most of it. If this is what the public finds harmful to its interests, let the public destroy me. This is my code - and I will accept no other. ... I could say to you that you will and can achieve nothing but universal devastation, as any looter must, when he runs out of victims. I could say it, but I won't. It is not your particular policy that I challenge, but your moral premise. If it were true that men could achieve their good by means of turning some men into sacrificial animals, and I were asked to immolate myself for the sake of creatures who wanted to survive at the price of my blood, if I were asked to serve the interests of society apart from, above, and against my own - I would refuse, I would reject it as the most contemptible evil, I would fight it with every power I possess, I would fight the whole of mankind, if one minute were all I could last before I were murdered, and I would fight in the full confidence of the justice of my battle and of a living being's right to exist. Let there be no misunderstanding about me. If it is now the belief of my fellow men, who call themselves the public, that their good requires victims, then I say: The public good be damned, I will have no part of it"