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Microsoft

Microsoft Appeals Anti-Trust to Supreme Court 301

Posted by CmdrTaco from the com'on-dad-we're-not-really-a-monopoly dept.
wicket2001 writes "The AP is reporting that Microsoft has appealed their anti-trust case to the Supreme Court. Microsoft sent the petition to the high court two days before the case was to be sent to a new judge to decide what penalty the Redmond, Wash., firm should face."
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Microsoft Appeals Anti-Trust to Supreme Court More

Microsoft Appeals Anti-Trust to Supreme Court

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  • Mocroshaft (DOW: MSUX) should be forced to fix it's security holes, remove script handeling from it's e-mail clients, and generally clean up it's act when it comes to the holes in its OS and software. How many Mac virii/worms do you hear about? What about UNIX/Linux? Virtually NO BSD problems. Microshaft (NASDAQ: MSHT) looks to be the butt of every joke (aka Virii) and almost invite the problems. Forget making users keep IE, forget the blocking that XP is said to do to competitor's software. FIX THE DAMNED THING ALREADY! Then you can worry about the anti-trust violations.

  • Since any remidy judgement would be on future products and not on existing ones, a delay in a remidy judgement on their XP release means, msft will have codified their future and any remidy judgement will have ZERO EFFECT on them!

    XP will be there final operating system release, and all upgrades to allready released products will not be part of the anti-trust remidy judgement. So by beating the clock, msft can circumvent any court ordered remidy!

    I also suspect that msft will not share their filesystem information with the corporation that makes partition magic; this will make installing linux on new devices very problematic. Sure you can buy a separate hardrive and linux can peacefully co-exist with XP, but having a dual booting IPAQ will be impossible, as you cannot have two separate bootable storage mediums on them. This will have the effect of forcing most people to choose XP or linux, but not both.

    Am I too pestimistic folks?

  • Heh. (Score:1, Offtopic)

    by BiggestPOS ( 139071 )
    Abortion, The Death Penalty, Legalization of Marijuana, Whether a Software company can integrate a web browser and an OS. Which os these sounds LEAST important? Why waste the Supreme Courts time with such MULE-SHIT. Oh well, money talks, bullshit walks.

    • B. (Score:2, Insightful)

      by Anonymous Coward
      Legalization of Marijuana

      Sounds pretty unimportant to me. But if your life revolves around weed... well, each to their own.

      I'd rather the Supreme Court review a case against a company who's actions touch upon many major sectors of the economy. Microsoft is so big that they have influence on the news/media. They affect your choice and price on various high-tech products, which in turn affects many people's jobs. They have a very real influence on people's retirement plans.

      I for one think if a business is going to become that powerful, they should be under ethical scrutiny once in awhile. Who cares about a goddamn plant.

  • Very Bad Move (Score:5, Insightful)

    by kajoob ( 62237 ) on Tuesday August 07, 2001 @05:23PM (#2166619)
    This decision was upheld unanimously by a very conservative lower court, there is no way the Supreme Court would overturn that. There are no higher judges, but even Supreme Court Justices will respect a lower court's decision if made that emphatically. I expect this to be denied cert, which essentailly means that the Supreme Court has voice their agreement with the lower court's decision without actually hearing the appeal.
    • The SCOUS has shown itself to be extremely irrational and partisan. When the election was on the line the same justices who had for years voted to further states rights went against states rights. The same justices who had rejected numerous equal protection arguments when it came to criminal punishment suddenly embraced equal protection. Not only that but they had the nerve to state that this ruling should not be ever used as a precedence in further equal protection cases because they knew that some democrat was going to make them look like idiots by immediately bringing an equal protection case up and watch them squirm like the snails that they are.

      In short. Unless you can prove definatively that Bill Gates is a democrat or that he gives more money to democrats then republicans there is no way he will lose in the supreme court.
      • "The SCO(t)US has shown itself to be extremely irrational and partisan."

        YEP, sure have.

        Both this Rehnquist Court and the prior Brennan and Douglas Courts. Lots and lots of controversial decisions. EG, Brown v Board of Education in 1954..only took 90 years for the Supremes to decide that maybe Lincoln was right.

        "When the election was on the line the same justices who had for years voted to further states rights went against states rights. The same justices who had rejected numerous equal protection arguments when it came to criminal punishment suddenly embraced equal protection."

        YEP, of course conversely, the current "liberal" Justices who have always been true blue on equal protection and Federal Control over the States also suddenly decided to vote against the positions that they've always taken before.

        "Unless you can prove definatively that Bill Gates is a democrat or that he gives more money to democrats then republicans there is no way he will lose in the supreme court."

        of all the massively ignorant/stupid things you've said this takes the cake

        Judge Jackson who found that MS was a monopoly and ordred the MS Breakup is (drum roll, please) ..a proven anti-antitrust, pro business country club Republican.

        the CCA panel judges who upheld about 90-95% of Jackson's Findings are all.....conservative Republicans (all appointed by Ronnie RayGunz, BTW)...

        The current Supremes, theoretically "Conservative" have UPHELD Roe vs Wade (perhaps the biggest "hot button" issue there is for alleged "conservatives") TWENTY-TWO times.

        BTW, do you have any clue who appointed the US Supreme Court Judges who voted ***AGAINST*** the majority Florida Decision? "Scooter Souter" for example? Have you a clue???

        you might not be stupid, but you sure don't know what you're talking about....

        if you want to criticize the Florida Presidential Decision fine, there's a lot there to criticize and i sure have done so, BUT,

        ...masquerading your political idealogy as "fact" is both intellectually dishonest and reduces real problems to "Us versus Them"...which is a big reason things don't change very quickly or very effectively here in the USA

        BONUS ROUND: Guess what political party the Gates Family as a whole have been registered to for the last 3 or 4 decades???? Incl BOTH of Bill's parents..HINT, doesn't start with an "R"

        • "YEP, of course conversely, the current "liberal" Justices who have always been true blue on equal protection and Federal Control over the States also suddenly decided to vote against the positions that they've always taken before. "

          Well that just proves my point. If you go and re-read my post you will see that I said the supreme court acted in a irrational and partisan matter. Apparently you agree with me on this one.

          "Judge Jackson who found that MS was a monopoly and ordred the MS Breakup is (drum roll, please) ..a proven anti-antitrust, pro business country club Republican. "

          OK. But last I checked he was not on the supreme court. What does this have to do with the supreme court?

          "the CCA panel judges who upheld about 90-95% of Jackson's Findings are all.....conservative Republicans (all appointed by Ronnie RayGunz, BTW)..."

          Well I don't think they are the supreme court either. Are they?

          "educes real problems to "Us versus Them"...which is a big reason things don't change very quickly or very effectively here in the USA "

          It is us vs them. If you want to roll over and play dead that's fine, it's your choice. But it's time we woke up to the fact that there is a civil war going on in this country. The rich against everybody else, whites against the blacks, the republicans against the democrats. Unfortunately I am on the losing side and the reason is that the we are wimps. You never hear of an abortion doctor killing a priest but republicans kill at least one or two doctors a year. It's about time we fought back. It's time to drag some republicans behind a truck till they get dismembered and put the fear of god into them the way they have been putting the fear of god on to us.

          "BONUS ROUND: Guess what political party the Gates Family as a whole have been registered to for the last 3 or 4 decades???? Incl BOTH of Bill's parents..HINT, doesn't start with an "R" "

          Well then he'll lose in the supreme court. If they have a chance to disrupt democratic fund raising they will do it.

          • "Well that just proves my point. If you go and re-read my post you will see that I said the supreme court acted in a irrational and partisan matter. Apparently you agree with me on this one."

            guess so, since i originally responded with "YEP, sure have."

            "But it's time we woke up to the fact that there is a civil war going on in this country."

            NOPE, (that's in the "I Want What You're Smoking" Category) and nothing like it, mass media propaganda..war has big numbers of people shooting at big numbers of other people, lots of blowed up/burnt out buildings, check out coverage of Tel Aviv, Jerusalem, Beirut, Chechnya, etc

            they have wars going on...

            what we really have here is; unexcusable poverty in the richest nation in history of mankind, a big-city public school system that would embarass Albania; prisons full of non-violent "criminals" because their mind altering substance is not alcohol or tobacco, a health care system that gives enormous amounts of health care ***FREE*** to the most affluent demographic in America, while ignoring the poorest, the foreign and the most needy AND corporate robber barons who find that if they just give enough money to the Democratic and Republican Parties, both Parties will respond by providing a sideshow that takes everyone's mind off of all the stuff that's REALLY WRONG AND ISN'T ABOUT TO GET FIXED, EVER

            we have talking heads on the TV/radio, pontificating morons like Limbaugh, Koppel, Press, Matthews, King, O'Reilly, et al

            who crank up the delusional faithful (which would seem to include you) into believing that there really is some kind of political dialogue of some seriousness going on here, when its all just verbal masturbation...

            there has been no substantial change in American foreign policy since Eisenhower and no substantial change in American domestic policy since Johnson

            nor will their be anytime soon, as it might just get in the way of corporate profits

            NARCOLEPSY IS "WHAT'S GOING ON HERE..", Left/Right Wing inspired, media fueled and driven, corporate funded NARCOLEPSY

            cheered on and encouraged by the lowest voter participation in a major "democracy" in modern history, bolstered by an even bigger epidemic of NIMBYISM (ala McNealy and Ellison on powerplant construction in Silly Valley) and "only morons do jury duty" middle-class sensibilities (OJ Who?)

            if you can't get 'em out to vote, you sure ain't gonna get 'em out for your "Civil War"

            well, as Alex "The Frogman" deTocqueville observed, "People get the government they deserve"

            and we sure have
    • The intention is to hold things up while they negotiate. It's not a matter of changing the ultimate "binary" outcome, i.e. whether Microsoft is a monopoly or not. What they are trying to do is create enough delays that the other side will be willing to negotiate the degree of the applicable penalties.
      • "What they are trying to do is create enough delays that the other side will be willing to negotiate the degree of the applicable penalties."

        Yes, M$ does want the ability to extend settlement negotiations while they release XP w/o any delay due to additional legal wrangling, BUT, that's only half the story....It's also about being "hard core" (as BillG sees it) and as shown by a # of books about MS/DOJ.

        From the original Apple "look and feel" lawsuit through the Go lawsuit to the Netscape action, M$ will always charge you hard to see if you blink....

        There's a new team in charge of the M$ lawsuit at the Dept of Just-ice and M$ is playing them, like M$played their predecessors.

        so, for example, last week/so we have all sorts of announcements loudly trumpted about M$ "loosening up" control of the Desktop, and then M$ "leaks" info about XP doing this or that,

        then an "offical" M$ spokesgeek will then deny the rumours they want to kill and ignore the rumours they want to spread....

        ALL this is psych out material to FUD their opponents and jerk around the mainstream media, who at this point, they hate even worse than they hate Klein/Jackson...

        somewhere at Rancho Redmond, in Bldg 8, somebody is deriving great enjoyment from all of this attention and speculation (SA, "Henry Ford".

      • Especially with the imminent block against an XP release is everything. Make the government lose a couple of days, and XP will be out of the door...
    • I'm tired of seeing stories like this one from earlier [slashdot.org], where Microsoft is throwing their weight around. From a neutral point in this holy war, it is obvious Microsoft has made some great software in their time... and just as often have abused their monopoly to force all sorts of things on people, whether its .doc files that don't have a standard and thus are difficult to convert, or .NET, or a hundred thousand hacked IIS servers with open cmd.exes available.

      Their renewed attack with dynamic web-rewriting, .NET, and such is a whole new round of attempts to lock people into computing hell if they aren't totally dependant on Microsoft from cradle to grave for anything touching a computer.
    • This decision was upheld unanimously by a very conservative lower court, there is no way the Supreme Court would overturn that.

      Right, the Supreme Court prefers to overturn decisions made by Democratic courts instead(i.e. the Florida Supreme Court in the last election)

    • Re:Very Bad Move (Score:2, Insightful)

      by pigeonhed ( 137303 )
      hmmm. bad move less than 60 days to release of XP and now another group of court preceedings that will take time. This is standard and predictable. Any legal counsel would have recommended the same thing. Good move bad company.

    • How so? (Score:2, Insightful)

      by jdcook ( 96434 )
      "This decision was upheld unanimously by a very conservative lower court, there is no way the Supreme Court would overturn that. There are no higher judges, but even Supreme Court Justices will respect a lower court's decision if made that emphatically."

      The decision of the Court of Appeals may have substatial predictive value for how the SCOTUS will decide to grant certiorari or decide a case. But it is in no way determinative. This court has emphatically indicated that it may grant certiorari when all observers expected that it would not. This court has decided cases in ways that are not obvious to even experienced SCOTUS observers. Personally, I don't think they will grant cert either but I don't kid myself about it.

      "I expect this to be denied cert, which essentailly means that the Supreme Court has voice their agreement with the lower court's decision without actually hearing the appeal."

      Denial of a grant of certiorari in not a mechanism of voicing agreement without hearing the appeal. All that denying cert does is end the appeal proceess for whatever issues are on appeal. The court may or may not agree with the appeals court. It is possible that they disagree with the appeals court on the technical issue but agree with the outcome. They may be waiting for a better set of facts. They may think the issue is insufficiently important. There is no way to tell because the court doesn't say anything when it denies cert.

      It is important to remember the effect of granting or denying certiorari. If the court grants cert than the decision it reaches becomes binding precedent on the entire country. If the court does not grant cert, then the court of appeals decision is binding precedent only on those jurisdictions that lie within its circuit. The decision may well influence decisions in other circuits but they are not bound. When there is a disagreement on a point of law between the circuits, the SCOTUS will often settle the matter when a case with the appropriate facts and posture petitions for certiorari.

      Finally, I don't see why you think this is a bad move. Does Microsoft have something to lose by exercising their right to appeal? And if they do, is it offset by whatever they gain from the appeal? Just because an appeal doesn't produce the ultimate result of reversal doesn't mean it doesn't produce other, lesser benefits.
  • use this. [yahoo.com]
  • If MS is asking that the lower court ruling be completely vacated, does this mean that the SC can re-examine any remedies (ie: breakup)?

  • Part of the FUD principle. (Score:2, Insightful)

    by Anonymous Coward
    Core to MS operating procedure is delay. This is simply yet another delay of the inevitable. But, it will give them time to come up with some other form of hukstery. The sad thing is, FUD works. As is being proven here.

  • Better link (Score:2, Redundant)

    by interiot ( 50685 )
    The AP story can be found here [excite.com].

  • Bork Bork Bork! (Score:2, Insightful)

    by Dancin_Santa ( 265275 )
    Too bad Congress borked Bork, they'd have an airtight decision against Microsoft. As it is, MS has got some pretty heavy sway with the pro-capitalism (not necessarily pro-competition) majority of the Supreme Court.

    Dancin Santa

  • Deja Vu (Score:2, Interesting)

    by abe ferlman ( 205607 )
    Prediction: The court will provide a temporary injunction allowing XP to be put on the market until they make a decision. Then they won't make a decision until Bush is crowned President^H^H^H^H^H^H^H^H^H^H^H Windows XP is actually released into the wild and the issue becomes moot.

    Sometimes politics is so depressing.

    Bryguy

  • What? you can't appeal a movie! (Score:5, Funny)

    by room101 ( 236520 ) on Tuesday August 07, 2001 @05:25PM (#2166639) Homepage
    "Microsoft Appeals Anti-Trust to Supreme Court"

    They may not have liked it, but the movie never mentioned the company Microsoft. I don't see what the Supreme Court will do for them at this point, I mean, it's already in rental anyway.

  • Working links (Score:4, Informative)

    by iammichael ( 90526 ) on Tuesday August 07, 2001 @05:26PM (#2166646)
    That AP link didn't work for me, so here's some that do:
    • I used to work in the AP's web team, which is responsible for The Wire [ap.org], which is the source of the posted link. You cannot link directly to a story on the site unless the referrer is one of the known "subscribers" -- that is, a newspaper or other media outlet that is an AP member and actually pays for the service, including a co-branded header (such as CTCentral.com [ctcentral.com]). The "black and blue" screen that /.ers are seeing is the front door for everyone else. That is the expected behavior -- the site is not being /.ed.

      The AP is stuck between a rock and a hard place in the Internet era. As a content provider, they would like to be able to sell stories, photos and packages to any potential client, including Yahoo, AOL, etc. On the other hand, as a non-profit cooperative, the AP can be controlled by a block of smaller local newspapers, who need to maintain their readership. This is the fine line that the AP has been walking on for the last few years -- it's anybody's guess as to what their ultimate business strategy will be.

      In any event, thanks to those that posted the Yahoo story link. I still find it hard to believe that /. has such poor editorial review for the simplest things! (although I guess I shouldn't be)

      - Richie

  • As scary the possibility that the verdict could be overturned might be, it is completely outweighed by the fact that if they lose this one, Microsoft has nowhere else to turn. They will have appealed to the highest court in the USA and LOST.
    • As scary the possibility that the verdict could be overturned might be, it is completely outweighed by the fact that if they lose this one, Microsoft has nowhere else to turn. They will have appealed to the highest court in the USA and LOST.

      ...until the 2002 Q2 release of Microsoft's new JusticeXP rollout which will leverage the use of the new .COURT initiative. As yet there are no plans to announce compatibility with browsers other than IE9.0-SP7. Features of the new OutlookXP will include the new "AutoAppeal" button which builds a mailing list from your .COURT acounts to create a targeted campaign for your appeals process.

      No word yet as to what the theme music will be but they will likely approach artists who already have a grudge against the Federal Government. There have been a significant number of Gnutella searches this week for "Willie Nelson"...

    • Yes.
      The same US Supreme Court that said it was acceptable to arrest people and throw them in jail (albeit for a day or so) for minor traffic offenses.
      Think of that the next time you drive through Bumfuck, Arkensas.
      The Supreme Court justices are nothing but the posterchildren of the democratic and republican parties (who are they appointed by?).

  • Might backfire (Score:2, Interesting)

    by Grokopen ( 35265 )
    This kind of surprises me since it's been the DoJ's Antitrust Division [usdoj.gov] that has consistently wanted to take this case to the Supreme Court (and bypass the hostile appeals court). This move might backfire for M$ because the Supreme Court's antitrust decisions during the Rhenquist years have not always been favorable to the defendant. In fact, there are actually some prominent pieces of Supreme Court antitrust case law that might play into the hand of the DoJ. Perhaps M$ will shoot themselves in the foot with this move.
  • Translation: Microsoft made another move to buy enough time to release XP. If they can just get that sucker out, they will have leveraged their monopoly into crushing an entire marketplace full of competitors long enough to recover from whatever remedy is applied to them.

    Quite the Hail Mary, no?

  • And Meanwhile... (Score:2, Interesting)

    by tre ( 172905 )
    network and system admins across the world try to deal with the Code Red I and II worms, while MS pushes us forth into .Net land. IIS 6.0 on a .Net server, hey why not? [sarcasm]

    What I find so strange is, when someone commits a crime, they are held accountable for it and often spend a long period of time getting out from under the financial burden that it created. When MS stresses the envelope in the OS market, to the point where tax payers' money is used frivilously to prosecute them, it makes them millions on advertising and free PR revenue.
  • I wonder if the imminent product launch of XP might bring this entire issue to a head faster than anything? MS probably doesn't want to have any news stories that have the lead: "Microsoft launched XP amidst worries about a strengthened monopoly."
  • An ending to the case! No more appeals, something has to be decided... No matter what the decision, I'm happy.
  • No one is suprised that this action is being taken, and the outcome is almost assured, however, it's important to get closure on the issue both for Microsoft and for their opponants/competitors. This way the courts can proceed with establishing a remedy, and Microsoft will not be able to delay further, that stage of the trial. As it stands now, their appeal to the supreme court may delay further action just long enough for them to be able to release Windows XP. Thile this in itself is a bad thing, it does finally exhause Microsoft's options with regard to delaying any remedies that may be established by the courts - which is a critical issue in the technology industry where the battlefields are created and dissapate in months, weels and sometimes days, with their foundations buried in the shifting sands that are the internet. Microsoft has already succeeded in the browser war, and the desktop space licending issue, neither of which are relevent any longer since Web inspired technologies have spawned far more insidious technoques for marketing such as embedding links to adversisers and vendors deep within applications such as was done with the digital camera software that's boundled with Windows, as evidenced by the Kodak case.

    --CTH

  • Not really news (Score:5, Informative)

    by evilpenguin ( 18720 ) on Tuesday August 07, 2001 @05:34PM (#2166706)
    The Supreme Court is unlikely to do anything about this. They are unlikely to overturn Findings of Fact and Conclusions of Law made by a federal judge and upheld by a circuit court of appeals. They are unlikely to agree to hear the case. This is more a holding action designed to make the whole process as slow as possible.

    It will go to the Federal Circuit Court again, to the Appeals Court, and on back to the Supreme Court at least one more time before things are done. Microsoft needs to give the Supreme Court a reversible error or Constitutional issue before the Supreme Court will agree to hear it.

    It is interesting (if you are into legal wrangling), but hardly an important story. If the Supreme Court agrees to hear it, THEN it is news!

  • ...doesn't mean the Court will hear the case. They already refused to hear it ahead of the appellate court, so it is as likely as not that the Supreme Court will allow the penalty phase to be decided before hearing the case.

    That's especially true when you figure the the SC probably doesn't want to have to craft a penalty, and would just send the case back down for a penalty phase if it upholds the lower courts' rulings.

    The Findings of Fact and of Law are already pretty firmly entrenched in this case. I feel reasonably secure that when and if the case does make it to the Supreme Court that it will stand by the findings made by the lower courts.

  • Apparently Microsoft hopes to fix everything in the next release. :-)
  • or what?

    Just when they are poised to put a stranglehold on the Internet, e-commerce, network servers, and your mother-in-law's underwear, they are going to try and tell the Supreme Court they are not a monopoly?
  • if it's determined that a LARGE FINE be imposed rather than a breakup, it's likely to be well more that a billion dollars in my humble estimations. Like any other crime, it can't really be undone, and how do you measure the damage done to the industry and more importantly, the consumer?

    I think this money should be diverted to open software to prevent any company from being able to monopolize the software industry going forward. Do we get enough cash so all those developers whove contributed to Linux/GNU so far can quit their day jobs and hack the good hack full time? Or do we push open source into schools training teachers and funding an educational system based on freely available source code? (hey work done at unikversities often becomes their sellable property, work from public schools could go back to the public).... What's the remedy, is it tap 10 Billion dollars from MS and if so, what's to be done with that cash?

    • ONE BILLION DOLLARS (pinky to mouth) is nothing to MS. They have over $30B cash on hand.
  • Well, they risk a lot. What if Supreme Court will think that Judge Jackson had actually pretty good idea and will order to uphold the former decision to break the company? They can still do it, right?

  • It's all about timing (Score:3, Insightful)

    by reimero ( 194707 ) on Tuesday August 07, 2001 @05:48PM (#2166797)

    Unless the Supreme Court rejects the appeal out of hand in the next 2 months and attempted injunctions against releasing Windows XP fail, Microsoft wins, at least in the short term. IANAL, but if I understand legal proceedings correctly, the entire remedy phase is on hold until the Supreme Court rejects the appeal, vacates the ruling out of hand or hears the case. Typically, the Supreme Court takes several months to reach a decision on whether to put a given case on the docket. Microsoft's short-term goal is to extend the case into November, clearing the way for the release of Windows XP. It's a lot harder to put the genie back in the bottle, and both sides know this.


    Regardless how you feel about Microsoft, though, this isn't good for consumers. The October release date has become much more than an arbitrary deadline, and XP will be released in whatever condition it's in. (I know, the same can be said about their previous versions of Windows, but this time there's a lot more than PR on the line!)


    Personally, I don't think the Supreme Court will even hear the case. There doesn't seem to be any legal ambigity or any untested or controversial legal rulings at stake. A conservative, MS-friendly court ruled unanimously against Microsoft on all counts. As big and powerful as Microsoft is, I think the Supreme Court will simply reject the appeal without comment, leaving it to the lower courts. The Supreme Court doesn't like to get involved unless there are constitutional issues at stake, and there aren't any here.

    • I don't think you understand the legal process very well. Right now, M$ is just asking the Supreme Court to hear their case. That's called a petition for cert (which is short for some latin technical term I can't remember how to spell :-). The Court *does* typically make decisions on cert requests reasonably quickly, so unless they *agree* to hear the case at this point, it's unlikely to be a major delay. Given the situation, many of us agree that it's bloody unlikely for them to hear this case at this time. So it'll go one where the circuit court sent it.

  • They won't touch it (Score:5, Insightful)

    by alewando ( 854 ) on Tuesday August 07, 2001 @05:48PM (#2166800)
    The Supreme Court hasn't exactly been lying low since the Bush v. Gore fiasco, but they they're not going to touch this one with a ten-foot pole. There's just no need for them to do so.

    The Supreme Court's docket is entirely discretionary. They only hear a couple hundred cases every year, out of the thousands that get submitted. It takes years for a case to make its way up to the Supreme Court from the lower courts precisely because the Supreme Court's policy is to let all lower remedies get completely exhausted first and to let all the difficult legal issues receive one or two decisions from below.

    They might someday hear a Microsoft antitrust case, but it's not going to be this one right now. Why would they jump into the fray now before the breakup measures are even decided? The case is even dimmer for Microsoft in light of the unanimous circuit court ruling. It's not unheard of for the Supreme Court to overturn a unanimous ruling, but they've almost never gone out on a limb and done so when there were alternatives like waiting for the wheels of justice to turn some more.

    Instead of focusing on the Supreme Court, we should be focusing again on the upcoming battles in the district court. While it's decided that Microsoft is guilty of antitrust violations, whether that fact will create any lasting legal or economic ramifications has yet to be seen. It still could go either way: they could be broken up and fined, or they could just get another slap on the wrist with another toothless consent decree.

    And with the possibility still open that Microsoft and the DOJ could settle out of court, well, we've got bigger things to worry about.

    • Re:They won't touch it (Score:3, Insightful)

      by sheldon ( 2322 )
      First of all you refer to "before the breakup measures are even decided". I don't know if you haven't been paying attention but... there isn't going to be a breakup.

      Even if the SCOTUS decides not to hear the case and it goes back to the lower court for remedy hearings, the appeals court has already made it clear that a breakup was unjustified. This was the one part of the case clearly overturned.

      As far as the likelihood of the SCOTUS hearing the case. I don't think you can predict what cases this court will hear and how they'll decide. Certainly not after Bush v Gore.

      It's quite possible they might hear this case if for no other reason than to get it over with quickly. The presence of this case is causing a great deal of stagnation in the tech economy and it would be good to finally clear it out of the way.
      • They Circuit Court didn't rule a breakup unjustifiable. It ruled that Jackson exhibited poor faith in how he went about choosing it as a remedy -- that he showed bias in the various Microsoft motions he denied and the inappropriate extralegal comments he made.

        When the case goes back to the district court level, the new judge can choose a breakup remedy anew.

  • Microsoft appeals to the Supreme Court? (Score:5, Funny)

    by reimero ( 194707 ) on Tuesday August 07, 2001 @05:51PM (#2166812)
    I don't know, I've never found them that appealing...
  • Microsoft sent the petition to the high court two days before the case was to be sent to a new judge to decide what penalty the Redmond, Wash., firm should face.

    Man - that's two whole days' potential delay they passed up on!

    The MS legal team must be losing their edge.

    -Renard

  • What if... (Score:4, Insightful)

    by Bonker ( 243350 ) on Tuesday August 07, 2001 @05:54PM (#2166832)
    WinXP ships, and the injunction is imposed against it after it has already started to move copies?

    My ideas of the consequences - legal minds feel free to correct me:

    1. Walmart, Babbages, Everyone else who sells software is required to 'yank' shelf copies to comply with the injunction. Most stores will be slow to comply, and then claim that they sold out before the injunction hit.

    2. We'll have a 'limited edition' of WindowsXP in the wild. Pirate copies will run rampant online and on Ebay because 'the most popular OS' cannot be legally bought in stores, and MS will be in the odd position of having to try enforce their own injunction because they can't be seen as encouraging piracy, can they? The other members of the BSA would scream if they did.

    3. After a few months, Microsoft will release something like Windows IR (Injunction Release!) online as an 'update' to existing copies of WinMe and Win2k. It will be an Internet Explorer 4.0 type release -- all the funcitonality of a new OS, all the FUD and anticompetitive bullshit, but Microsoft will give it away as a new product just to spite the Fed and its competitors.

    4. ANOTHER LAWSUIT over whether or not MS violated the injuction by releasing WinIR (Say that one out loud!)

    5. Microsoft releases much of WinIR under their 'shared source' license, locking hundreds, if not thousands of developers into MS-only development. Hey, if it's free, code for it, right?

    6. After months and months and months, a judge finally gets the breakup to stick.

    7. Because they won't let him make the rules, Bill takes his toys and goes home. Microsoft 'exits' the home operating system market, and concentrates solely on a 'Software as Service' business market. They sell Win200x releases on a yearly basis to people who want or need server software and are too dim to use a *nix.
    • They will shift to a fraction of a penny from a trillion transactions a year and leave the utility OS market to the lower cost competition.

      Besides .NET really needs 64-bits and I don't see them competing against Linux when its already on those platforms, free and easier to administer.
  • I recall the Microsofties gloating when the D.C. Circuit announced its result. The test, at the time, I though, as to for whom the result was better would be whether the government or Microsoft filed a petition for certiorari. It appears that it was, in fact, the government who had the better result.

  • Why this should come as no suprise (Score:4, Insightful)

    by stuccoguy ( 441799 ) on Tuesday August 07, 2001 @06:00PM (#2166882)
    Microsoft has invested millions of dollars in rolling out Windows XP and .NET. They are well aware that the Justice Department will seek an injunction to stop the release of both of these technologies when the case goes back to the district court for a penalty hearing. They are not about to allow that to happen before XP and .NET are rolled out.

    Their delay tactics have already resulted in the demise of the Netscape browser before relief could be granted. They know that if they can roll out XP and .NET before the district court can stop them it will be too late. You can't put the egg back in the shell. The district court will still be able to consider other remedies, but Microsoft will have already been successful in widely deploying new proprietary standards and other agendas such as new activation techniques [slashdot.org], killing [slashdot.org] USB 2.0, strangling [slashdot.org] MP3, anddiscourage [slashdot.org] Linux/Windows dual boot systems.

    Because these new standards and agendas will have been adopted by other hardware, software and service companies, the district court's ruling will have limited effect on the standards and agendas themselves.

    • Microsoft has invested millions of dollars in rolling out Windows XP and .NET.

      What are we talkin here? 2-4 days or a whole weeks profit? Nope. No monoply here.

      (btw...I agree with most of what you've said. Ignorance accounts for a few of them, but most are intentional acts.)

    • They know that if they can roll out XP and .NET before the district court can stop them it will be too late.

      So it's completely predictable that they would have taken this step (and others) to try to delay the courts.

      What I hadn't heard predicted, though, is that they also may ship XP next month [cnet.com]! "Microsoft could send PC makers the final--or gold--code for Windows XP as early as Aug. 15 ... [and] would allow PC makers to sell systems with Windows XP installed in September."

      Anything to beat the clock and dodge the bullet.
  • The real question is:

    Does Bill Gates own any oil companies? If so, He's got all the buddies in Washington DC he'll ever need.

  • Summary (Score:2, Informative)

    by slice4444 ( 245785 )
    Here's the PDF [uscourts.gov] of the actual petition.

    This appeal is on one issue - Judge Jackson. The Appeals Court threw out Jackson's remedy (the breakup) to be reconsidered by a new judge. Microsoft is trying to get the Supremes to throw out the rest of Jacson's rulings, and get them reconsidered by a new judge as well.

    ... the district judge should have been disqualified as of September 1999, the date of his earliest known violation... Such disqualification would require vacatur of the district court's findings of fact and conclusions of law.

    The Appeals Court didn't buy this strategy. They said they reviewed the record, and that there was no 'actual bias' prior to the remedy. Microsoft disagrees, and says that they don't have to show 'actual bias', just the perception of it. In this petition, MS relies heavily on two precedents, the biggest being some other case where the Supreme Court said there didn't have to be 'actual bias' to throw out a lower court ruling.

    This petition sounds valid on the face of it. (I don't get why the appeals court didn't throw out Jackson's findings, personally. IANAL, thank god) But MS is probably stretching the precedent they clearly want to apply.

  • After the whole Code Red headline contest non-event, I think we need another similar contest here. This time, however, instead of guessing headlines on newspapers, you'd have to guess:

    1.) Whether the ruling is upheld, overturned, or not even heard by the court. (OK, so this one is probably a gimme)

    2.) If it's heard, who comments on the decision, and do they support or dissent?

    3.) If it's not heard, will there be any comments, and what might they say? Will the justices kick it back down with a chuckle, or will they too say something about (for example) Microsoft's disrespect of the legal system?

  • Microsoft is focused on getting XP out in October, and they are rationally playing for as much time as they can. To me, that looks completely Machiavellian, uninterested in justice, and devoid of conscience, just like you would expect a profit-maximizing non-human entity to behave. Keep this in mind when you give that entity your credit card number or entrust it with personal information. Scary.
  • Wow, that strategy of attacking Judge Jackson for running his mouth sure worked out well. It bought them just enough time to realize how stupid it was to not challenge the entire judgement, so now they get to go to a Supreme Court that doesn't tend to be very friendly to big corporations. I guess they are hoping that a few of the older justices croak and get replaced by some of Dubya's corporate cronies in time to save their butts.

    Of course, at this point MS is just fighting for time. Netscape has slowly managed to die off, despite Microsoft's arguments that AOL paying too much for Netscape in the DotCom days showed that Netscape was doing fine, and AOL is continuing to hold off switching from IE to Komodo, which doesn't make MS look good. Linux companies are dropping left and right, and game companies that were once very happy to push for Linux are coming out with the fact that Linux games don't sell, pointing out that Linux isn't really a desktop competitor. On top of that, MS is starting to gain server market share once held by Sun.

    So I guess Microsoft is making a last ditch effort now, trying to pull a hail Mary victory with the Supreme Court. This should be interesting.
  • Justice should apply for a temporary restraining order to prevent XP from being shipped. This would maintain the status quo, and strong arguments can be made that they are likely to win on the merits.

    There has got to be a way around the calender chicken that is being played out here.

    -dB

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