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DOJ Argues in Favor of MS Settlement 530

Posted by michael
from the no-surprises-here dept.
hpa writes: "It is described in this article on CNET the Department of Justice is arguing in favour of the proposed settlement, because the government's case was too weak to impose additional penalties on Microsoft. Somehow this seems like a very odd thing to me, effectively the prosecution is pleading on the part of the defendant..." There's also an AP story.
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DOJ Argues in Favor of MS Settlement

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  • Surprised? (Score:3, Insightful)

    by Mr. Sketch (111112) <mister.sketch@[ ]il.com ['gma' in gap]> on Wednesday March 06, 2002 @03:42PM (#3120346)
    Somehow this seems like a very odd thing to me, effectively the prosecution is pleading on the part of the defendant

    It's amazing what a few million dollars under the table can do...
    • Re:Surprised? (Score:2, Insightful)

      by Hugh Kir (162782)
      It's not really about money. The Bush administration is almost religiously pro-business, anti-regulation. I think they'd be on Microsoft's side even if Microsoft didn't give them one red cent. For better or for worse, Bush really does believe letting big businesses do whatever they want without any interference from the government is a good thing.
      • Well, lets ask ourselves...Why "Bush really does believe letting big businesses do whatever they want without any interference from the government"?

        I can almost certainly state that he loves big business, because big business loves him.

        GWB likes being in power. He knows that BB put him in power (paid his way) for a return. He knows that he better provide a good return for BB or else they'll find someone else who provides better return.

        Now what GWB _believes_ he's doing may be another thing. But I can't help him with his self deception.

        Lady Liberty might as well have a sign on her butt that reads - "This space for rent - best offer."

        Cheers!
  • RTFA (Score:4, Insightful)

    by pinkUZI (515787) <slashdot,7,jmasker&spamgourmet,com> on Wednesday March 06, 2002 @03:44PM (#3120356) Homepage Journal
    The article states the the DOJ was explaining why they settled, not defending MSFT.
    • It says that the DOJ was explaining. Believe it if you can.

      I'm afraid that that argument blows my suspension of disbelief.
      .
  • by Dr. Spork (142693) on Wednesday March 06, 2002 @03:45PM (#3120358)
    I don't think anyone expected the DOJ to do anything to Microsoft after the Bush administration hijacked the government. However, there might still be hope in some of the separate state lawsuits. Also remember that the EU is investigating MS.

    Just because the DOJ are wusses doesn't mean that MS is totally in the clear.

    • they're whores.

      have you seen the amount of contributions given to Ashcroft in the Missouri Senate race by MS? 2nd biggest, right after enron.
    • by Brian Knotts (855) <bknotts@@@cascadeaccess...com> on Wednesday March 06, 2002 @03:56PM (#3120448)
      The Clinton administration had no particular gusto with which it pursued Microsoft. Remember, it was under the Clinton adminstration that Microsoft was allowed to skate the first time around.

      Face it, Microsoft is a major corporation and, yes, a considerable influence on our economy. No administration (that can actually get elected) is going to gleefully attack them, because they fear the economic effects (yes, I realize that any negative effect would likely be short-lived, and would be more than made up for by the subsequent explosion of new entrepreneurship, but many people don't see things this way).

      • I would have liked the first action against MS to have been more effective, however you're overlooking the main reasons it wasn't: the Judge who was supposed to sign the settlement wouldn't and the reason he gave for refusing overreached in some ways, laying himself open to reversal. With the sunsequent appeal forming a significant delay and the growing political turmoil caused by it, (which allowed Microsoft to begin to portray itself as a victim being persecuted for their own success, attracting political sympathizers) MS had opportunity to wreak great deal of further harm.
        Remember when that settlement was proposed: 1994.
        There was no windows95 yet. Clinton had been President for about one year. Not exactly footdragging on the part of his DOJ.
        Some of the complaints heard in the subsequent trial had not even happened yet. For that matter Microsoft was not yet the colossus they are today overshadowing almost every industry.
        But more importantly the industry was not yet willing to cross MS and bring specific allegations against them in a courtroom. This is key. You cannot have prosecution of a monopolist without the supporting testimony of its victims. We are all MS' victims, yes, but most of us don't know anything that isn't hearsay. You need the testimony of the ISVs and PC OEMS as well as industry competitors. People have to get up on the stand and say Mr Smith of MS met with with me in my office on June4 1996 and said clearly to me: "You will crosslicense your technology to MS in exchange for knowledge of the blahblah interface or we will see to it that no OEM ever bundles your application and that it will never run correctly on Windows" Things like that. In 1994,the participation of other computer industry companies in the Tunney phase of the initial proposal was limited to an anonymous Amicus brief. It's difficult to convict someone of a crime when the witnesses won't come forward to tell their stories. The Amicus brief preserved the anonymity of the Doe companies and dealt with general problems with the proposed settlement --why its provisions were inadequate to restrain MS and why it was unenforceably ambiguous-- shying away from specifics about MS armtwisting. In 1994 they just weren't yet willing to talk. By 1998, some of them were. In between, the policies of these companies was to avoid any conflict with MS, or in the case of the top tier PC makers, to actually defend MS in public comments by their CEOs, at MS love-ins, Congressional hearings, etc. Also in between 94 and 98 the first settlement was denied, the denial was appealed the settlement was kicked to Judge Jackson for signature, Jackson then tried to oversee implementation of the settlement and eventually found MS in contempt of the terms, then he was reversed by the DC Court of Appeals, and eventually the whole settlement thrown out by them. It may appear to someone without knowledge of the case timeline that nothing much was happening from the time of the initial settlement to the time of the new antitrust action, but that's mainly due the slowness of appeals processes. The settlement hadn't been in place long at all when Judge Jackson found MS in contempt of it for tying IE to Windows98. But you have appeals on either side of that interval. The Clinton DOJ acted early, but in a twist of fate they might have acted with greater result had they waited until after windows95 came out to launch the suit. The climate in the industry changed and they would have gotten much more support from witnesses. But who could have predicted that?
        When the DC Appeals Court threw the first settlement out, the Clinton DOJ swiftly began a whole new antitrust action against Microsoft which they prosecuted vigorously I think you will have to admit, winning their case and leaving the successor administration with a very strong hand going into the present rounds of appeal and settlement.

        If the new administration chooses to throw that strength away and negotiate a toothless settlement as they announced they would with the tobacco companies, that's hardly the fault of Janet Reno or Bill Clinton. Except of course I forget that it's always Bill Clinton's fault; for he is the Anti-Christ.


        If you're looking for a villain for the strange run of good luck that MS had against the government in court during the 90s, you might turn a skeptical eye towards the DC Court of Appeals. They are the hand that has actually set Microsoft free to pillage the world not once but at least 3 times now. And they stand ready to do so again, I'm sure, if MS and the Ashcroft DOJ complain to them that Judge Kollar-Kotelly has demonstrated bias against guilty people.
        They vacated Judge J's remedies and thus gave MS yet another chance to settle, this time with a new adminstration which almost certainly never would have brought an action against MS in the first place. ("My administration will always favor innovation over litigation" - G. W. Bush on the day of Judge Jackson's FInding of Fact,speaking to a room of investment bankers. "Micrsoft's monopoly has materially benefitted the consumer" Atty Charles James, Bush DOJ chief of antitrust division speaking on McNeil/Lehrer News Hour.

  • by lblack (124294) on Wednesday March 06, 2002 @03:47PM (#3120372)
    Defense: Your honor, our client committed no crime.

    DOJ: Yes, he did. He committed lots. Look, we have evidence.

    Defense: Your honor, our client has committed crimes and is sorry.

    Judge: Oh, well, in that case.

    DOJ: Your honor! We demand a punishment!

    Defense: A punishment? Are you some sort of barbarian, with your "punishing"?

    DOJ: Your client will be punished!

    Defense: Will not!

    DOJ: Will too!

    Defense: Will not!

    [...3 hours later]

    DOJ: Will not! I mean! Wait, that was no fair I...

    Defense: Ha! Sucka!

    Judge: Case dismissed!

    -l
  • by Drachemorder (549870) <brandon@NoSPAM.christiangaming.org> on Wednesday March 06, 2002 @03:48PM (#3120380) Homepage
    "Department lead attorney Philip Beck said that Microsoft was able to hold on to a monopoly in Intel-based operating systems only through anti-competitive acts. But the government was not in a position to make that argument stick, he said."

    This seems odd to me, considering that they did "make it stick" --- MS was found to have violated the law, were they not?

    • They never produced evidence that Microsoft was only able to hold onto a monopoly in Intel-based operating systems through anti-competitive acts. They showed that some of Microsoft's business agreements, such as those requiring ISPs to use explorer if they wanted listed by microsoft when using their wizard. They showed that they had a judge that allowed the justice department to get in a lot of really good sound bytes of Microsoft smack talking their competitors, which weren't much as far as evidence, but made for interesting news coverage.

      Microsoft violated the law. That much was clearly proven. But the violations that were proven weren't the major ones they were accused of. They never even proved the tying claim that the case was bassed on. They can either go back to court about those things, or just accept what they won and settle.

      The most significant thing that is likely to come out of this case is that Microsoft was found to have a Monopoly in Intel PC based operating systems. That's something that Microsoft's competitors couldn't afford to try and prove on thier own, but can now use in their own lawsuits. It's very questionable if consumers are really the ones that are going to benefit from splitting up Microsoft, or the proposals that the disenting States are bringing to the table. It's not the Justice department's job to look after the interests of Microsoft's competitors. They can do that on their own. I don't think my tax dollars need to be spent so that Netscape can make a bunch of money making poor quality products again. If they really have a case, let them sue Microsoft on their own.
  • by xirlosan (96461) on Wednesday March 06, 2002 @03:51PM (#3120406)
    It's pathetic when the U.S. Government can take a hard line on terrorism in traditional forms, but is cowed by a multinational corporation that has been demonstrated to be involved in monopolistic forms of terrorism. The DOJ is basically giving up because they're tired of trying to fight Microsoft. What sort of precedent does this set for the Standard Oils of the new millenium?

    This government has bowed to corporate interests at every turn. I'd be happy to see a list of cases where individual freedom was held in higher esteem than corporate interests. This is yet another side effect of the US's desire to remain an economic superpower. It has changed from a Representative Democracy to a colossal beauracratic corporation. Perhaps we should call it The United States of America Inc.?

    Remember folks, a government that tramples the rights of the citizen is a tyrannical government. There is no leeway for arguement in that.
    • by ncc74656 (45571) <scott@alfter.us> on Wednesday March 06, 2002 @04:17PM (#3120616) Homepage Journal
      It's pathetic when the U.S. Government can take a hard line on terrorism in traditional forms, but is cowed by a multinational corporation that has been demonstrated to be involved in monopolistic forms of terrorism.

      No, what's pathetic is when someone attempts to make an analogy between cutthroat business practices and terrorism. When's the last time you saw a Microsoftie plow an airliner into a skyscraper, torch a research facility, or form a mob to take to the streets during a meeting?

      Godwin's Law ought to be updated...the Nazis aren't the only ones used in flawed reasoning anymore.

      • by Odinson (4523) on Wednesday March 06, 2002 @05:56PM (#3121261) Homepage Journal
        Somthing bothers me about your post...

        You said "When's the last time you saw a Microsoftie plow an airliner into a skyscraper, torch a research facility, or form a mob to take to the streets during a meeting?"

        Slavery often ends brutally as well. Most Americans make us slaves though indifferance towards minority opression. Sensory depervation or water torture are definatly brutal when spread over a long enough period of time, yet do not need to utilize a angry mob of teenagers or a violent act. Class economics removes hope and independance from our future. Class economics are at the root of the Talibans power over their soldiers and are behind the inability of an individual with merit to sue a company without being wealthy to start with.

        Our classes are no longer earned on a generational basis but inherited. Another name for that is a caste system. A caste system is bloodline slavery mixed with religion (of greed in this case). Given enough time slavery is always brutal. Our system can be a brutal as the 11th but not with such force in the span of an hour. Does that make it more humane?

        His argument was poorly put but not toothless. Americans need to wake up to the fact that they can never Bill Gates without being rich to start with. He is not the American dream, but a generation of a legacy. Each person should have the means to make his own way, and they won't need a three generation head start.

    • by rgmoore (133276) <glandauer@charter.net> on Wednesday March 06, 2002 @04:22PM (#3120652) Homepage
      The DOJ is basically giving up because they're tired of trying to fight Microsoft. What sort of precedent does this set for the Standard Oils of the new millenium?

      I think that you're reading the causes of this wrong. The DOJ is basically giving up because there's been a change in administration. The Clinton administration, while not exactly tough on monopolies, apparently felt that the case was worth pursuing. The Bush administration, OTOH, seems to view antitrust law as being an obstacle to business and would probably drop the case completely if it wouldn't cause too much political fallout. It was widely argued before the 2000 election that Bush would almost certainly water down the Microsoft case if he won. Now he has won and the case has been greatly watered down. If this is a big surprise to you, you need to pay more attention.

    • "monopolistic forms of terrorism"? What the fuck is that supposed to mean? What, did the "Windows freedom fighters" install XP on your machine while you were sleeping?

      I'm not saying Microsoft is Mr Squeeky-clean or anything but your argument that they're "terrorists" flat out sucks.
    • by scrytch (9198)
      I'd just mod this down as OVER-FUCKING-RATED -- insight? It's a rant, at least Chomsky puts forth evidence -- but I feel really compelled to respond.

      Terrorism? What kind of social retard are you to compare a ruthless monopoly to murderers. I want you to stand in front of anyone who's lost a loved one and tell them that you're in the same boat because you have to pay a hundred bucks extra on a PC, and that operating systems progress has been held back. I'm not a violent person, so really the tragedy in that might be that you'd end up getting beaten before the realization got beaten into your head that your comparison is full of shit.

      Unbelievable.
  • Of course political contributions could be the reason that the DOJ refuses to enforce the antitrust laws even after winning the case. But, it may just be an ideological bent.

    The Cato Institute does not really support Microsoft in its defense. It just believes the government should not have antitrust laws nor enforce the ones they have.

    To be honest, it is most likely not the money at all.

    Of course, telling the judge that the DOJ did not try because she would not order a more appropriate remedy is a waste of breath. One of the reports suggested that the judge was asking if the DOJ position is not at odds with the appellate decision. It clearly is. And, she knows it. She went on to ask "why?".

    • Then why don't they prosecute for the felonies?

      They admitted to perjury. They confessed to the theft of the Stacker code. Those aren't monopoly laws, those are supposed to be illegal no matter who you are.

      I'm sure that there are other crimes that have been admitted to, but I can't call them to mind right now. But the management of MS at the time was guilty at minimum of accessory to grand theft after the fact, and that's just based on public information. Some of them had to be guilty before the fact, but I don't know which ones. And that's been let slip for several administrations. Now it's true, this happened before MS started its "lobbying" campaign, so simple bribery isn't what's going on. And the Democrats were as accepting as the Republicans. But "equal justice under law"??? Not hardly!

      OTOH, last month (or so) I read about a chemical company that knowingly (as documented by their internal records) and with intent (i.e., to save money) killed hundreds of americans and poisoned yet more. I think that the EPA spoke harshly to them about that. I didn't hear that they were even forced to stop doing it, however. (Possibly a class action law suit is in the works, but that should be a criminal offense, not just a civil offense.) So MS isn't alone in being let of extremely easy.
      .
  • by segfaultdot (462810) on Wednesday March 06, 2002 @03:55PM (#3120436)
    ...another /.er's comment i once read:

    The DOJ was supposed to come down on Microsoft, but they went down on them instead.

    ;o

    Seriously, this does not suprise me at all, given the priorities of the current administration.
  • GWB (Score:5, Insightful)

    by marcop (205587) <marcopNO@SPAMslashdot.org> on Wednesday March 06, 2002 @03:58PM (#3120467) Homepage
    GWB, "I prefer inovation over legislation."

    It was all down hill after GW Bush started to use the term "inovation" when referring to Microsoft. The conspiracy theorist in me says that he was bought out. Maybe he slipped when he said it?
    • Re:GWB (Score:5, Funny)

      by ChadN (21033) on Wednesday March 06, 2002 @04:06PM (#3120528)
      You spelled "innovation" wrong. Although given that it was a GWB quote, perhaps you were quoting him accurately.
      • You spelled "innovation" wrong. Although given that it was a GWB quote, perhaps you were quoting him accurately.

        It's a compound word. As in "no innovation".
      • You spelled "innovation" wrong. Although given that it was a GWB quote, perhaps you were quoting him accurately.

        Did his speechwriters misspell it? Or did he manage to misspell a word he said aloud?!
    • by pmz (462998)
      "innovation" is/was Microsoft's main marketing word. If GWB really said, "I prefer inovation [sic] over legislation," then Microsoft's commercials really sank into him. If Microsoft has successfully brainwashed the U.S. President and the U.S. DOJ, then Bill Gates really is the Dictator of what used to be the United States of America and, soon, will be the Dictator of Earth.

      When will the release of Microsoft World Government be on the shelves at Best Buy? I'm sure the stores in Washington D.C. will be sold out within a week.
    • by Hooya (518216)
      I wonder what the dubya has to say about the SSSA or whatever the latest 3/4 letter acronym that essentially stands for "Screw the consumers". innovation over legislation indeed.

      watch 'distinguished gentleman' (Eddie Murphy) -- "if you're for, i got money coming in from suger manufacturers. if you're against, i got money coming in from candy manufacturers." ... "put me down for 'for'".

  • by QuantumG (50515) <qg@biodome.org> on Wednesday March 06, 2002 @03:59PM (#3120471) Homepage Journal
    it won!
  • The DOJ, with every detail of the trial available to them, decided that further litigation would not be of further use to anybody. A large number of people with very limited access to the details (but with heavy anti-Microsoft biases) conclude that the DOJ is wrong. Who's right? I know who I'd put my money on. Do you believe that the righteous always win in the courthouses of the United States? Or that the lawbreakers never escape conviction or punishment? Whether or not the settlement agreement is fair is beside the point. The decision to end the trial makes sense. Within the framework that is the justice system of the U.S., it appears the DOJ has gone as far as they can.
  • Do you expect it to be any different? The USA isn't interested in a free market, so why would they punish Microsoft? Yesterday, the USA announced 30% tariffs on imported steel in order to protect their own steel workers. If they don't care about the free market between countries, why would they care about the free market inside their own?
  • One opinion (Score:5, Insightful)

    by Steveftoth (78419) on Wednesday March 06, 2002 @04:02PM (#3120507) Homepage
    I don't think that there is a good solution to this problem, because for the most part, they seem to be attacking the wrong problem. For most of the trial it seemed that the DOJ and company were attacking the software end of MS, meaning the IE browser, the integrated-ness of the OS and such.
    When they should have ignored that completly. They should have attacked their business policys because that's what the problem really is. The problem with MS is that they used their position to destroy all other oses. DR-DOS, IBM-DOS, OS/2, etc. all dissapeared because MS played dirty pool and wouldn't let computer manufactures sell PCs with those OSes without penalizing them for doing so.
    It doesn't matter if IE can be removed or not, if MS wants to make it part of their product then so be it. If they want to integrate Office with their os then so be it. It's their product, if you don't like it, complain to MS or don't buy it.
    I feel that linux is now a real alternative to windows on the x86 platform. And if you really don't think so, then go buy a Mac. They are also good machines.
    I don't know how they can pay for the deaths of the other software they killed by being a monopoly. I don't think that this settlement is enough punishment, but that's a biased opinion.
    • MOD parent up. (Score:5, Insightful)

      by Bodrius (191265) on Wednesday March 06, 2002 @04:33PM (#3120716) Homepage
      For some reason people tend to ignore that the DOJ went to court with the wrong case. They became enamoured with the Netscape case and left out much better arguments for a monopoly case.

      I really don't think MS was inherently wrong by tying the browser to the OS. Maybe it was bad engineering (crippling the OS on purpose), but having an integrated browser did benefit me as a consumer.

      Konqueror, for example, benefited me more as a Linux user, because it is a better integrated browser. I would also prefer a lightweight, less-buggy, integrated browser in Windows, but I don't see releasing a crappy product as an anti-competitive maneuver.

      Forcing the market to accept a crappy product AND REJECT competition is an obvious anti-competitive maneuver. There is no way MS could give that the "benefits the consumer" spin. The BeOS case was a much more obvious evidence of monopoly abuse than anything Netscape-related.

      It's not clear it's monopoly abuse to alter your product to compete with other companies. It is monopoly power to force legislation (OEM contracts) and/or artificial technical constraints (false incompatibility error messages with other OSes) upon the market.

      Declaring MS a monopoly for the wrong reasons just makes it less likely for it to ever receive the punishment appropiate for the "right reasons".
    • I mentioned this on one of the last MS articles and without even mentioning Linux was accused of attacking linux ;)

      I agree though...who cares if IE comes with the OS or not. They go so hung up on that one thing, which even if you remove the blue E, it'll still the HTML control will still be there in every file window.

      But they missed all of the dealing that MS has done - all so a computer company could ship Netscape or something instead - not that any company in their right mind would do that.
    • Re:One opinion (Score:2, Insightful)

      by Eric Damron (553630)
      Forcing computer manufacturers to pay for Windows even if it wasn't loaded on a computer was definitely flexing their monopoly muscle to the detriment of the public.

      However, putting an integrated browser into their OS was also a strategic move that not only hurt Netscape but more importantly was the beginning of much more sinister plan. Specifically it was their first maneuver to use their monopoly power to gain control over Internet services. Something that they knew would be VERY lucrative.

      They continue to strategically bundle software into their OS. They call this innovation but in reality it is a thinly veiled attempt to use the dominance of their OS to extend power into additional markets. It makes competing products irrelevant and thereby destroys the competition.

      I find it ironic that most companies that have been destroyed by Microsoft used Microsoft tools to develop their software. Then when Microsoft realizes that one of its customers is about to take a lucrative piece of some market they rush in and destroy. Kind of like being a crop that will be harvested at some point.
    • That would be a (slightly) reasonable argument if they then re-opened the case based on matters not covered in the original case. I haven't, however, seen any sign of this.

      Any perjury prosecution in the offing over the forged evidence?

      Any grand theft over their stealing the code from Stacker?

      Any prosecution at all for any of the crimes that they are known to have committed?

      Then I can't buy this whitewash either.
      .
    • I'm not sure how you think Micorsoft penalized hardware companies that used DR-DOS and IBM-DOS. I'm pretty sure their you must install our OS on all machines you make of a certain type agreements post date these OSes. With DR-DOS, they definatley kept them from having early access to Microsoft's other products, which hurt DR-DOS because it would often need to be patched before some new MS products would work on it. Of course, it's not clear that Microsoft was a monopoly at that time, so it's kind of a mute point anyway.

      OS/2 is kind of a different story. It was relatively hard to configure, had a lot of compatibility issues with software from many different vendors, and the advanced features it provided over Windows really didn't mean that much to customers at the time. IBM has a long history of making some great products, but not really knowing how to market them, or when and how to bring them to market. OS/2 pretty much died on it's own because Windows met most user's needs as well if not better, and people were more used to it. NT filled the needs of those that Windows didn't. OS/2 just never really offered people something they were looking for.

      You are right that the key to Microsoft's unfair competition has been their licensing. Microsoft should be allowed to add products to their OS/opperating environment. That provides a benefit to customers. It was especially important when few people had broadband. A lot of applications have been built apon the middleware that Microsoft has added to Windows. Without that functionality being integrated into Windows, every vendor would have to create that functionality themselves, or license it from someone else. Even if the middleware is provided for free, there would be conflicting implementations and configuration issues. Consumers wouldn't benefit from this, and it isn't the justice departments job to make life better for Microsoft's competitors at the expense of consumers.

      Microsoft's licensing agreements are another story. There's no reason ISP should have been forced to use IE if they wanted to be listed in MS's connection wizard. There's no reason that Microsoft should be able to demand that multi-boot systems not be sold by vendors.

      I'm not sure that multi-os systems are really in vendors best interests due to support costs, but it should be the vendor's decision, not Microsoft's.
  • Charles James (Score:2, Interesting)

    by Eppie (553278)
    Charles James, the head of DOJ's antitrust division, was a played a significant role in the formulation and enforcement of the DOJ's antitrust policy under Reagan. It was Reagan's DOJ that walked away from the IBM antitrust case. It's no surprise Charles James is using his prosecutorial discretion to avoid putting the screws to MSFT.

    The day Bush won, US v. MSFT was essentially over.
    • It was Reagan's DOJ that walked away from the IBM antitrust case.

      And today, look at the terrible things IBM is doing to us all because of this!
  • DOJ Lawyer, TK429 : Hey, you Microsoft, Let me take a look at your software!

    Bill Glates : This is not the software you're looking for.

    TK429 : Ok, this isn't the software we're looking for.

    Gates (waving his hand) : We may procede.

    TK429 : Ok, these guys look clean, move along.
  • by mcc (14761) <amcclure@purdue.edu> on Wednesday March 06, 2002 @04:15PM (#3120600) Homepage
    Just a question.

    It is my belief, and i know the belief of most of the people on slashdot, that the DOJ is currently neither acting in the best interests of the american people or acting to see the law of the united states of america upheld.

    Whether from "contributions" or bribes, or from the simple republican belief that laws should keep quiet and go play alone in their room and leave the nice Important People alone when they're trying to make money (now run along now. shoo), the DOJ seems pretty clearly to me to be currently of the belief that microsoft is doing a good job and should be let loose from the responsibilities of the good of the american people or either the letter or intent of the antitrust laws. Put plainly, the executive branch is currently against the idea of antitrust regulation.

    However, it is not the executive branches job to make the law. That is the job of the legislative branch. And the legislative branch has declared anticompetitive behavior to gain monopolistic control over a market harmful and illegal. And it is not the executive branches job to decide whether extant law is valid and worthy to be carried out. That is the job of the judicial branch. And the judicial branch seems in this case to want the law to be carried out.

    But it is the executive branch that is currently trying to end this. So i ask: can they be removed from this? In any way? I know nothing of law-- this is why i am asking. Can citizen groups sue to state that the prosecution of this case should be taken out of the hands of the DOJ and into the hands of the EFF or some specially-appointed board? Can the judge appoint some kind of Special Master or Special Prosecutor or someone who will be picked to actually attempt to push for the most stringent judgement possible for microsoft? (REMEMBER, it is NOT the job of the prosecutor to decide what is just. It is the job of the prosecutor to argue for the strongest judgement possible, the job of the defendant to argue for the weakest judgement possible, and the JUDGE to ensure all arguments are reasonable and find the most just and legal balance behind all. The judge should be unbiased. The prosecution is not really intended to be someone unbiased against the defendant, so it doesn't matter if the prosecutor is someone picked by Sun or Oracle or whoever; whether biased or no, the prosecutor should *act* biased against the defendant, because that is their *job*.) Can we declare John Ashcroft tainted because he recieved campaign contributions from microsoft, and have him chineese-walled away from the case?

    Don't police officers and judges and FBI agents and Attourneys General of the United States of America have to swear to protect the american people and uphold the law? If the people currently trying to short-circuit the case against microsoft make it clear they are against in this case the upholding of the law, are they violating those oaths? Can there be legal repercussions for them in doing that?

    A quick note to those responding: I am not *particularly* trying to start a flamewar (flamewar bad. informative comments good. HULK SMASH) on whether the doj SHOULD be blocked out of the microsoft antitrust case. I am not 100% convinced it is the best thing (just mostly :) ) The question i am asking is, technically, legally, is this a thing which is an *option*; asking "is there a law by which Sun or whoever can sue to have Bush appointees taken away from this case", not "if Sun sued under such a law, would they succeed". Is it possible under the laws of the U.S.. But respond how you will. Thanks..
    • Can there be legal repercussions for them in doing that?

      Only if the courts are willing to prosecute - you can't remove someone from elected office at any time just because you don't like their policies; you have to wait for an election.

      You would have to prove that there was actual malfeasance or dereliction of duty and provide concrete evidence in order to get any charges to stick. The burden of proof is on the accuser in our court system, so you would need the equivalent of Holy Writ and the Hand of God to get any of our current administration on those kind of charges.

      Basically, it's a no-win situation if you want to go up against Bush and Ashcroft - they can do no wrong right now in the public view. The political tide has turned in favor of corporations and PACs for the time being.

      Stand back for a while and resume the fight when the tide is more favorable.
    • Actually, the Government could pull there corp. charter. In this case they probably should.
      Unfortuantly I can't remember the name of the cat. rand act maybe?not sure.
  • Death Sentence (Score:2, Interesting)

    by luugi (150586)
    One thing I don't understand. If a company does something illegal, all it gets is a fine. The company can still exist and still profit from their illegal activities. But if an individual does something illegal, he's sent out to prison, and if he does something really bad, they can give the death sentence. Why is there not a death sentence for companies? In other words, if the company is found guilty of a crime the company ceases to exist. The company is then handed over the government. The government finds a way of splitting the assets between the competitors. More that I think of it, that could cause a whole new set of problems...
    • This idea was extensively discussed in a front page article recently here [kuro5hin.org]

      What? You're still reading Slashdot? That is so 2001.

      K5 & adequacy.org are where its at now.

    • Do you really think MS deserves a death sentence?

      The business side may have played hardball, but nowhere do I see MS being accused of assaulting, maiming, or killing anyone.

      Chemical companies, and manufacturing companies that have third world factories on the other hand...

      This really just boils down to MS threatening a few companies in the market and those companies using political pressure as a weapon against their competitor which happens to be MS. In the grand scheme of things, the government has probably spent more money fighting MS than it has trying to find Osama Bin Laden. Why shouldn't they want to get this case over with and take a vacation?
    • Actually, the Government could pull there corp. charter. In this case they probably should.
      Unfortuantly I can't remember the name of the act. Rico act maybe?not sure.
  • by dcavanaugh (248349) on Wednesday March 06, 2002 @04:25PM (#3120667) Homepage
    Instead of the traditional Windoze or Office artwork/logo, they would have to show a large, full-color picture of OJ Simpson on every product package. Think of it -- OJ could use the royalties to pay the civil judgment against him, and M$ would have a celebrity endorsement.
  • by Rune69 (244519)
    This is turning out to be quite a week for Microsoft.

    First, yesterday's news that the Vatican Endorses .NET Messenger Service [bbspot.com], and now this!

  • There's an interesting political subtext here.

    The DOJ of a Republican administration is implying they'd like to impose stiffer penalties (nudge, nudge, wink, wink) if only the DOJ of a previous Democratic administration had done a better job arguing their case in earlier phases of the trial.

    That's some fancy political jujitsu.
  • by gnetwerker (526997) on Wednesday March 06, 2002 @04:40PM (#3120750) Journal
    Everyone commenting on this is missing one key point:

    The settlement can not have as its purpose "punishment" of Microsoft. The court documents are littered with precedents that companies found to have violated the relevant statutes (Sherman Act, Robinson-Patman Act, Clayton Act) cannot be per se punished for the violation. They can be required to "disgorge" (such an interesting word) the fruits of their acts, but the finding cannot be punitive. Even this doesn't really apply to Microsoft, because they were found to have gained their Windows monopoly legally (it's legal to have a monopoly, believe it or not) buy to have used illegal means to maintain that (desktop OS) monopoly. Unfortunately the argument about illegally tying IE was overturned by the Appeals Court.

    Any future settlement of this case must focus, as a matter of law, on preventing Microsoft from continuing its illegal acts. This is why 99% of the Tunney act responses were more or less thrown out.

    /.ers should be focused on what needs to be done to keep Microsoft from further maintaining its monopoly, not on simple punishment. Then you might get listened to. Oh, and in case you were wondering -- someone is listening.

    • This does not however prevent them from being punished for perjuring themselves during the case, does it?
    • IIRC the appeals court did not overturn the IE ruling, they simlpy repealed the punishment back to the lower courts (which is where the DOJ promptly dropped the case).
    • For those who care, you should probably mod this person up. If he is who he claims he is, he's Steve McGeady, former VP of Intel who testified during the Anti-trust trial about MS pushing Intel to kill their multimedia product. I'd say he has a very good understanding of the case.
    • by Kwil (53679) on Wednesday March 06, 2002 @07:06PM (#3121731)
      /.ers should be focused on what needs to be done to keep Microsoft from further maintaining its monopoly, not on simple punishment.

      We could tell them to simply obey the law.. it has everything in it already to keep them from maintaining an illegal monopoly.

      Unfortunately, they've already shown that the law doesn't mean anything to them (see consent decree). So in civi^H^H^H^H our society we put people who repeatedly refuse to obey the law in jail or to death.

      So how do we kill Microsoft? Easy - break up or revoke corporate charter, but the prosecution has shown it doesn't want to pursue that matter any further. (Note appeals never ruled it out completely, just said that the evidence/arguments presented so far were not enough to merit that kind of punishment - the DOJ has chosen not to pursue other arguments (like the consent decree) that might show it's warranted.)

      So how do we jail Microsoft? Well, the jail metaphor doesn't really work since people can continue to live separately from society, but corporations can't. Let's go instead with a guard metaphor; some group with the express purpose of watching all of Microsofts actions to ensure they don't break the law again. The settlement provides for this in a very limited way, but gives the guards far too little power, and Microsoft too much influence over them.

      Methods:

      1. The inmates don't choose their keepers. Microsoft should have *no* input into the selection of the review committee. They've shown a willingness to break the law, they've shown they can not be trusted, so they forfeit any input into the selection process. They get the guard that the people appoint - just like in any jail.

      2. Visitors are limited. No mergers, no buy-outs. They develop their technology on their own. They can contract work from other companies if required, but they can not take any IP rights of that work, and cannot require NDA's of those companies involved.

      3. Cell-checks. The guards must have the ability to check on what Microsoft is doing. This means technically competent people must be employed (paid for by MS), and if a complaint is recieved those people review the products in question to ensure no monopoly leveraging things (hidden APIs, competition breaking behavior, etc) are present.

      This doesn't require that the complainant have any access to the Windows source code whatsoever, but does require that those who think that Windows is engaging in anti-competitive behavior be ready to provide their source and their reasoning as to what they think is going on. The independant reviewers take it from there.

      Also note that this requires that all future versions of Windows maintain full backward compatibility. The third party application package (or MS application) you buy today should run perfectly on whatever version of Windows is released (with appropriate MS provided patches) at the end of the settlement period.

      4. No contraband. No exceptions for "security protocols" Inmates aren't (or shouldn't be) able to hide stuff in their underwear and claim privacy restrictions. Microsoft shouldn't be able to either.
  • I have tried in vain to pimp Linux to everyone I know but the answer is still the same. Either "There is no software for it" or "it's too hard". I mention this here as I am trying to understand why people keep chosing MS over linux (I am aware that about 80% of Windows users have never even heard of Linux which is an issue in itself). Anyhow, both of which couldn't be further from the truth. Linux is very different but its advantages are clear (Not crashing all the dam time for a start) KDE and Gnome make everything nice 'n easy for the newbies and there is no end of free software on the net. After thinking about this for a while I realized that it all came down to conformity. The "everyone else has it so I have to attitude" and I realized that the neumerous arguments I've had in real life with my many student peers over this issue were all in vain as the above mentality is as irrational as it comes and as Ingersoll said "To argue with a man who has renounced his reason is like giving medicine to the dead". So let's just sit back take the time to congratulate ourselvs for using an OS that we couldn't expect any more from, laugh at the ignorant Windows weenies and then we can write to our senators and register our opinions on M$ so they can ignore us as they cash another check from them.
    • The problem is that the vast majority of people are consumerist sheep, with no understanding of anything other than what corporate mass-marketing tells them.

      Other than Detleff Schrempf as the basketball player identified as "Linux" in a recent series of IBM ads, when was the last time you saw the word "Linux" in an ad on television?

      I'll tell you: never.

      Most people are sheep.

      Sheep graze on Micr$oft products.

      But they don't know any better, which is why the word "sheep" is a pejorative for...

      ...sheep.

      t_t_b

  • So the lawyers give up? When peaceful legal avenues are closed, the only recourses left are violent and/or illegal. What we have here is more like a "software mafia" than legal corporations.

  • I am not in favor of this settlement by any means, but...

    (1) Department of Justice is arguing in favour of the proposed settlement, because the government's case was too weak to impose additional penalties on Microsoft.
    Of course the DOJ is "arguing in favor" of their own settlement. They helped draft it, for goodness sake, and now they must defend it before the judge who will either accept or reject the deal.

    (2) Somehow this seems like a very odd thing to me, effectively the prosecution is pleading on the part of the defendant..."
    I believe this comment could be applied to many court settlements. After all, a settlement is generally when the two parties make concessions with one another. But let's be fair: This is indicative of the US judicial system, not just the Microsoft trial.

    In any case, based on the AP article, the settlement has yet to be sanctioned by the judge, and indeed, she is making certain that the DOJ is thoroughly explaining why they *did* settle.

    And let's not forget that AOL is taking legal action against MS. Even if this horrible settlement goes through, MS's battle is far from over. Just a shame it has reached this point...

  • by rworne (538610) on Wednesday March 06, 2002 @04:51PM (#3120815) Homepage
    Microsoft quotes:
    During his presentation to the court, Warden, the Microsoft attorney, said that the company considered the settlement's definition of middleware--including its Windows Media Player and Outlook Express--to be a major concession on its part, since Microsoft itself doesn't identify those products that way.

    Of course they don't. Here's how they define it:

    Digital rights management (DRM) is a method for protecting multimedia content from unauthorized playback or duplication. It provides content providers with the means to protect their proprietary music or other data from unauthorized copying and other illegal uses. DRM technology protects digital content by encrypting it and attaching to it usage rules that determine the conditions under which a user can play back the content. Usage rules typically prevent copying or limit the number of times the content will play. The operating system works with the
    multimedia middleware to enforce these rules.
    link [microsoft.com]

    What, praytell, would this "multimedia middleware" be? From all descriptions, it appears to be none other than Windows Media Player, or a subset thereof.

  • Makes sense (Score:2, Interesting)

    by ToasterTester (95180)
    This case was mishanded by the DOJ from day one. The stupid idea of using the so-called browswer issue blew it. If this case was solely on MS business practices it would be a done deal now.

    DOJ probably figure take what we can, and hope we don't lose that in the Supreme Court appeal that will be MS's next step. This thing isn't over and won't be for quite awhile.

    The people behind this case didn't study MS's history in situations like this, MS will delay and delay until whatever is done won't matter any more.
  • "Without causation, there's nothing to remedy," Warden said. Moving ahead with further litigation to determine a remedy--that is, penalties against Microsoft--would not have gotten the government anything more, he said. "One doesn't get two bites of the apple." [emphasis mine]

    Oooooh. That one is a stinker. Two bites at the Apple. Har har. Try three or four. Microsoft is taking bites out of everything in their path. Wedging into the server room and coming to a family room near you!

    The pendulum sure is swinging faaaaarrrr to the right these days. Next the gov't will agree to pay MS legal fees as compensation for disturbing their business&lt/joke>. Even though they have still been found guilty, the gov't feels they don't have enough of a case to seek penalties?

    I committed criminal acts, in order to secure my well-being. I am guilty. But thou shalt not punish me. Where is the accountability???

  • Bush Jr's presidency was bought and paid for by the country-club Republicans he so aptly represents.

    Is it any surprise that they didn't also buy the loyalty of his chief policy makers, like the DOJ.

    What I find so richly ironic about the obvious political biases of the Republican DOJ is the constant nattering the Replublicans have done throughout time regarding the political activism of the Supreme Court.

    The job of the DOJ is to enforce the law, not do it selectively or caprciously.

Dennis Ritchie is twice as bright as Steve Jobs, and only half wrong. -- Jim Gettys

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