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Appeals Court Will Take Microsoft Case 299

Jason W writes: "In a legal victory for Microsoft, the U.S. Circuit Court of Appeals agreed to hear the case. This was before Judge Penfield Jackson could hear the governement's request to bypass the lower courts and take the case to the Supreme Court."
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Appeals Court Will Take Microsoft Case

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  • In my opinion, the biggest problem with this case right from the word "go" was the fact that EVERYBODY knew that Judge Thomas P. Jackson was going to stick it to Microsoft regardless of testimony. I won't be surprised if most of the case gets dumped out the window by the Appeals Court given the Appeals Court's penchant for overturning Jackson's decisions.
  • Oh, and incase you think this is an economic sanction, I'll remind you that stock prices jumped up on news that Judge Jackson had ruled for the breakup. Even the baby-bills will be profitable.

    Unlikely. Another interpretation is that everyone in the market was expecting this to happen anyhow (it wasn't exactly a secret what the judge would rule), and so this information was already price into the's stock's market value. The jump was probably due to the unexpected good news: that the judge wouldn't enact the breakup until after Appeals Courts ruled. While everyone expected that this would be the case in practice anyhow, that the judge didn't even try to enact his ruling was in M$'s favour.


  • by orpheus ( 14534 ) on Tuesday June 13, 2000 @03:26PM (#1004107)
    Unfortunately, MS did not entirely succeed in their goals.

    1) if Appeals court declined to hear the appeal, they would have been fscked (an unlikely event)
    Tiny victory for MS

    2) If Judge Jackson decides to pass the case directly to the Supreme Court, and they agree to hear (the current constitutionally relevant portions), then the Appeals Court will be bound by those findings. Could go either way.

    3) If Judge Jackson decides to pass the case directly to the Supreme Court, and they agree to hear (as above), further issues raised on appeal may be heard by the Supreme Court, but such new arguments may be unlikely, due to the nature of the appeals process. Could go either way - a possible chance for MS to reformulate (if done carefully) vs. tying their hands with what they say in the Supreme Court appeal.

    4) the Supreme Court may decide to wait until the Appeals Court has ruled for reasons of simplicity. This allows MS to stall.

    My assessment: a tiny victory for MS -- not nearly as big as the press made it seem. The alternative would have been for the Appeals Court to refuse to hear the appeal, since not all elements of the MS Appeals Court appeal would be Supreme Court fodder, anyway.
  • by ethereal ( 13958 ) on Tuesday June 13, 2000 @05:19PM (#1004109) Journal
    There are plenty of other companies hacking out programs for use with Windows, Symantec, Adobe, AOL, Qualcomm that are making money from Windows.

    Just like DR-DOS, Netscape, and others have tried to make money? Before this trial, Microsoft let companies make money in the windows market if they made a product that Microsoft didn't make yet, or if they were a windows symbiote (anti-virus companies are a good example here) that Microsoft hadn't assimilated yet. Remember the testimony during the trial about companies who would abandon plans for products just on the rumor that Microsoft would be entering that market?

    Microsoft Internet Explorer is installed on the machine by default, so what? You can go download Netscape and Uninstall IE.

    Why can't OEMs put Netscape on the machine with IE, and let the user decide? Because Microsoft bullied them not to, that's why. I've heard that IE is really a better browser; I haven't used it. But even if that were the case Microsoft wasn't willing to let the consumer decide on the merits of the software. Instead, they used their OS monopoly to take over the browser market as well.

    Linux brought the internet where it is today.

    Y'know, if you're going to try to allay criticism of the holes in your argument by taking one or two counterpositions, you could at least pick something factual for the counterposition. Linux has just begun in the last few years to run more of the Internet - to be specific, Unix and open source made the Internet what it is today. I hope that Linux makes the Internet even better tomorrow - I don't expect Microsoft to do so.

    ?They have a monopoly! It?s bad!? Do you use windows? No. Why do you care?

    I care because half of the intranet pages at work only display correctly in IE. I care because in order to access my work Unix machine I have to use a Windows machine at home, even though I have a Linux box at home too, because my company's VPN software only runs under Windows. I wouldn't care about Microsoft being a monopoly if their software was high-quality and they arrived at their monopoly by making the best products, but I bitterly resent being forced to use mediocre software as a result of their illegally-acquired monopoly, and I'm appalled that such mediocrity is the standard to which the consumer has been forced to become accustomed.

    Soapbox indeed...

  • by konstant ( 63560 ) on Tuesday June 13, 2000 @03:30PM (#1004112)
    In Canadian law, at least, you have to have a reason to appeal. I don't know American law very well, but it seems (inferring from the Wired article) that that's also the case in the US. So what grounds are they using for the appeal?

    Fortunately, once the appeal is filed it will become a matter of public record and all of slashdot can descend upon it like a swarm of crows on a roadkill.

    If public statements of Microsoft's lawyers are any indication, the appeal will be based upon four lrge grounds:

    1) the prior law established by this appeals court

    2) the factual record (appealing instances of the FoF in which Microsoft claims Judge Jackson made irrational judgements and ignored evidence)

    3) the legal precedent of this case in context with other antitrust rulings

    4) the severity of the punishment in relation to the accusations

    It will certainly be interesting. I'm waiting on tenterhooks.

    Yes! We are all individuals! I'm not!
  • by craw ( 6958 ) on Tuesday June 13, 2000 @03:30PM (#1004113) Homepage
    The US Supreme Court (SC) is *not* going to take this case directly away from the US Court of Appeals. The DoJ may, if they are stupid, ask Jackson to petition the SC to take it. Jackson, if he is smart, will likely turn down the DoJ request.

    Why? It is extremely unusual to by-pass the Court of Appeals. Unless the SC wants to make this a precident, they will just follow the normal procedure. The Court of Appeals is showing all signs that they are taking this seriously. They were willing to have all the Justices hear this case; three have opted out, leaving four Republican President appointees, and three Democrat appointees. This move is also unusual, but it tells everybody, Hey! We are serious and are willing to devote a lot of our resources to this case.

    The Court of Appeals moved very quickly. While a schedule has not been release AFAIK, they will undoubtably expedite the hearing of this case. This would take away some of the arguments for taking this directly to the SC.

    There is a lot of legal paperwork, review, hearings, etc... that will be generated by this appeals. Decisions will be made. All this generates a papertrail that is the foundation for a Supreme Court hearing. If they by-pass the Court of Appeals, then the SC has do this background work. The Supreme Court under Rehnquist does not hear as many cases than the SC did, let's say, 30 years ago. They would not want to venture into this without the background, nitty-gritty work that the Appeals Court would do.

    The SC will not take this one away from the Court of Appeals. If Jackson asks, he will be turned down. Then guess who will be perturbed by this audacious move?

    BTW, the SC is not a liberal court. In the past few years, the conservatives have been in the slim majority. The Court of Appeals will also have a slim (4:3) conservative slant.

  • Three of them where disqualified, most likely due to stock investments, etc.
  • by werdna ( 39029 ) on Tuesday June 13, 2000 @03:32PM (#1004117) Journal
    OK, guys, here's the drill. In a federal case, the Circuit Court of competent jurisdiction has NO DISCRETION AT ALL whether or not to take up an appeal after a final order from the District Court.

    Thus, it misses the point to say that they "took up the appeal." They had no choice. After a Notice of Appeal is filed by Microsoft, the case automagically appears on the Circuit Court's Docket. Period.

    What is interesting is what they *DID* do, which is to order the review of the District Court case en banc (that means ALL the judges who don't recuse themselves will hear the appeal, not just a panel of three). The order can be found on-line here [microsoft.com]

    This actually isn't so great for Microsoft, because it means that, while they can be assured that two of the three judges who found for them in their first 2-1 victory (on different issues), those two judges will be a MINORITY of the panel that hears this case.

    IF THE COURT HEARS THE CASE . . . the Supreme Court can still take up the case directly, or they might wait until after the En banc review is complete.

    By way of explanation, Circuit Courts are big courts, typically with at least a dozen, and sometimes way more (the 9th Circuit, e.g.) judges. By random assignment, three of the judges are heard to review each case. After the three judge court has ruled, there is the possibility (before Supreme Court review) of the Court AS A WHOLE (en banc) to review the work of the three-judge panel, which is rarely done except for a really, really important case, or to resolve conflicts of precedent among prior three-judge opinions.

    What is interesting is, not that the Court took up the case -- they had to. What is interesting is that the Court has decided to bypass the three-judge review, and go straight to review en banc. (Some Circuits call it "in banc.")
  • by gilroy ( 155262 ) on Tuesday June 13, 2000 @05:32PM (#1004119) Homepage Journal
    Blockquoth the poster:
    a case MAY be fast tracked to the SC, so as to preserve the rights of consumers at large (read: ALL Americans) rather than the rights of the few or the one (I.E. Microsoft)
    OK, time to get on my hobby horse and rant against a dangerous creeping locution: The anti-trust laws aren't intended to protect consumers. They are intended to protect citizens. The proper lines to draw are not between consumers at large v. producer, but citizens v. corporation.

    I know it sounds minor. But we are already far too close to believing the hype and buying into the reduction of everyone to consumer cogs. There is value that transcends economic value. People are more than producers and consumers. Citizenry matters.

  • M$ knows that if they go directally to the supreme the process will go much quicker and thye will be split up sooner. However, by staying in the appeals court for a while they can avoid being split up. Smart move beating the gov't to the punch.

    Mark Duell
  • Nearly all of those Wall Street Types are earning alot more money then many of us here. I wouldn't call them stupid, that's for sure.

    For instance, how much harder is it to retain an OS monopoly if you don't have a stranglehold on applications.

    Dude, you're on crack. If you think that they will begin to lose money simply becouse they are broken up into small little monoploies instead of one big fat one, then you are severely mistaken. They will continue to make boatloads of money, no matter which way it goes. Heck, it may make them *MORE* money, becouse it could very well lead to MS Office *SQUASHING* any other alternatives under other platforms, if they end up with versions for these platforms...
  • by Danneskjold ( 122198 ) on Tuesday June 13, 2000 @03:38PM (#1004126)
    Sure, it will happen, but it is highly unlikely that the Supreme Court will take this case. "Gravest National Importance" (which I believe is the operative standard for this particular type of jurisdiction) is a VERY stringent standard. Moreover, there are a plethora of SC opinions on the virtue of taking these cases through the appeals process, to isolate the true constitutional questions. In short, I highly doubt the SC will take this case away from the DC Circuit. The fact that the case is en banc is pretty interesting. The Ninth Circuit (most of the west, including CA) often hears cases en banc, because there is a minority of the judges in the circuit that often hear appeals cases and produce bizzare results. The en banc method makes it so those judges can't make law on their own. In this instance, it prevents Microsoft from facing a lottery on which judges will hear the case - all the judges (that want to hear it) will hear it. So the opinion will truly reflect the thoughts of the Circuit. All in all, probably a damn good idea.
  • ...that MS-OS can spend time fighting the ruling while MS-AP goes on to continue being monopolistic?
  • So does this mean that the appeals court will be getting the case first or is it still to be decided whether it will go direct to the Supreme Court? My impression from the CNN story [cnnfn.com] is that it's still to be decided.

  • by Dodger_ ( 51556 ) on Tuesday June 13, 2000 @02:18PM (#1004132) Homepage
    This really doesn't matter. Tomorrow the DOJ can formally ask for the Expediatary Act and the judge can certify the case as meeting the Act's stipulations. Then, the Supreme Court has the opportunity to take the case, out of the district court's hand. You can bet this will happen too.
  • By the way, this would be even worse: in a strict socialist economy MS would be allowed to keep its monopoly, although as a state company.

    Weellll.... In a proper socialist system, The government would run the American People's Ministry of Software for the good of the people. That would mean, there would be no need for breaking up the company. As a government monopoly, it would belong to all of us. And that means, its operation would be democratic. And, since corp == gov't, we already pay for the products through taxes. So, it's run to give people the most for their money, not to get the most money from people. Likely by visionless beaurocrats, but that would surely be better than the active evil of Gates & Co.

    Likely, Windows would not have become the cludge it is, but a user-friendly(ish) UNIX OS, because the company would be there to make the best product. (When your profit stream is taxes, the way to maximize profit is to benefit the economy as a whole) And we all know what the most efficient OS style is.

    In a properly democratic socialist country, all the company's products would necessarily be open source too, since to make informed decisions on the operation of the Ministry of Software, ie. to know how to vote, the people would need to see what MSFT/APM of S were up to, or at least to have some trusted computer scientist read the code on their behalf.

  • And preloading doesn't explain IE's excellent CSS2, VML and XML support. Nor does it explain why IE is faster at rendering AFTER it's loaded.

    The rendering engine renders incrementally, which is a better way to render than waiting for the entire page to load before rendering. But as far as support for those standards. IE supports some XHTML, which is an XML subset, CSS2 support is fairly laughable, although CSS1 is pretty much there. VML I don't know about (who cares anyway?).

    IE5.* is a far better product than Netscape 4.*. Unfortunately it's still a prime example of monopoly leveraging and embrace-and-extend standards busting that both MS and NS have done in every supposedly standards-compliant product they've released. NS6 is already more standards compliant than IE, and a far better piece of software in general. Of course it's easy to see how well written Mozilla is when you can read through the source.

  • > 2) the factual record (appealing instances of the FoF in which Microsoft claims Judge Jackson made irrational judgements and ignored evidence)

    I thought appeals only considered application of law, not the facts.

  • It wouldn't just the NRA working from inside the White House...it would be Microsoft as well.

    They could collaborate on the ultimate FPS game....

  • Try reading Article II Section 2 Paragraph 2 of the US Constitution especially the last sentance. Congress need make no amendment to get the Court to butt out of any area. They only have to pass simple legislation.

  • Wow. Most leaders of software projects/companies would have to settle for being hit by a bus, but Bill Gates and Steve Ballmer get to have a plane crash for THEIR hypothetical deaths. I guess money does go places...

    (if you have no idea what I'm talking about, I'm referring to the question "What would happen to Linux if Linus Torvalds were hit by a bus?")
    No more e-mail address game - see my user info. Time for revenge.
  • IANAL, but according to articles I recall seeing earlier today, the DOJ or the judge can have the case appealed to the Supremes -- after MS files with the Appeals Court. So if the DOJ wants the Supremes to take over the case, the Supremes can do so now, without having to wait for any action by the Appeals Court.

    (This is a special rule for Big Important Antitrust Cases, and does not apply to most criminal and civil cases in the US, which must go through regular appeals-court channels. Kids, don't try this at home.)

  • Possibly, but I think it will be too far into it for him to stop it if he's elected. It might be too far already.
  • by kevin805 ( 84623 ) on Tuesday June 13, 2000 @10:38PM (#1004155) Homepage
    No one butters the bread of district court judges. They may as well be god.

    Regarding perjury, wouldn't you think Steve "We are not a competitor of Microsoft" Case would be a better target?

    Oh, wait, we don't dislike Steve Case.

    Or do we? He's AOL, and AOL is for lamers, so Steve Case is fair game, right?

    I can never remember who's fair game for a lynching. I wish someone could print up a nice table of who's evil, and who's on our side. It would also be handy if someone could give a quick outline of how the law is supposed to change when it applies to people we like versus people we don't.
  • there are plenty of other companies out there that still believe in proprietary code, closed source, restrictive licenses and all the rest.

    As Elrond (IIRC) said, "If any of the wise should, with this ring, overthrow Sauron, he would set himself up in his place, and yet another Dark Lord would arise".

    More seriously, whilst I agree with your main point, the Fall of Microsoft would create enough space for the competitors, including free software, to grow and take over its space. Right now we are the best placed member of the competition to do this.


  • The 9th Circuit has nothing to do with this case (I just mentioned it above as an example of a LARGE Circuit court).

    Of this much I am certain, a Circuit Court judge has probably NO INTEREST WHATSOEVER in the public perception of his or her decisions. There are few positions in the world as powerful as that of a Circuit Court judge and few positions as desirable. Moreso even than the Supreme Court, these guys get to practice "pure law" i n the highest.

    They pride themselves on their ability to follow the "law" rather than their instincts, and are far more concerned about their colleagues' viewing their work as pandering or anti-intellectual, than by writing a popular opinion. They tend to be more "by the book" than the Supes (who are not final because they are infallible, but vice-versa), precisely because they are subject to review.

    In short, Circuit courts, particularly EN BANC circuit courts, tend to do a really, really good job on the merits. What Microsoft misses by the en banc review is that their best chances for a win (getting both of their two judges from the earlier case on the panel) is mooted entirely.

    Moreover, there is one other thing. A 3-judge panel is BOUND by a prior 3-judge panel's decision as precedent. However, an en-banc panel can REVERSE the previous 3-judge panel. This adds a very interesting new possibility to the mix:

    1) The Court can find the earlier opinion controls and reverse the District Court (or just reverse on some new grounds).

    2) The Court can find the earlier opinion does not control, and decide to affirm the conviction on that basis.

    OR, the new possibility

    3) The Court can find the earlier opinion does control, OVERTURN the earlier opinion, and still decide to affirm the conviction.

    In short, the briefing allows the government no only to argue why the earlier case isn't relevant, but can also argue that the earlier case WAS WRONG!!!!!

    This is a big deal -- particularly because the third result can really slam the number of Microsoft chances on a subsequent appeal to the Supreme Court.
  • by 575 ( 195442 ) on Tuesday June 13, 2000 @11:50PM (#1004160) Journal
    "Microsoft appeal"
    A contradiction of terms
    Except when in court
  • Although MS does not go to Judge Jackson to ask for an appeal they do need to file for appeal, which they did not do. What MS has filed was the stay on the final decision from Judge Jackson. They only submitted the stay to Judge Jackson and not to the Court Of Appeals, yet, nor have they submitted the request for the appeal.

    From some of the other news sources that I have read, MS was currently working on said paper work but it had not been turned in yet. It seemed that they were hoping that Judge Jackson would grant a stay on the decision before they even asked for appeal, why, ask a lawyer. Judge Jackson remarked earlier today that he would hold his judgement on the stay until they had filed for appeal.

    From what I can tell coyote-san is correct in saying that the Court of Appeals took on the appeal before it was filed. They knew that MS was going to appeal, but US law says that there must be good reason for appeal before an appeal can be granted. If MS did not file a motion for appeal then they could not have submitted a good reason for appeal, ergo no appeal should be granted. This move by the Court of Appeals seems to say that they believe that there is a reason for appeal, therefore their opinion is most likely biased at this point.
  • > This allows MS to stall.

    Everyone seems to think MS wants to drag things out for as long as possible, but I'm not so sure.

    It seems to me that stalling is good for MS only if they are ultimately going to lose. After all, the publicization of the evidence has been the worst PR disaster in MS's history, and the longer the case stays in the courts, the longer it is going to stay in the news. Not to mention the fact that every time another chance to present evidence comes up, the DoJ has another handful of e-messages from BG re squashing PDAs or whatever is giving him nightmares that month. You would think that MS wants it to be over with as soon as possible.

    So to the extent that MS honestly expects to win, you should see them hurrying.

    For that matter, I'm not sure it's to their advantage to stall even if they think they are going to lose. Sure, it gives them time to make a few more acquisitions for the kids to inherit, but it also generates more bad PR for them to inherit.

  • I would guess that the lack of remorse (which is standard stuff for judges to take notice of in sentencing) is only the last of Judge Jackson's problems with MS.

    I would guess the brazen falsified testimony of the videotape, the 'screw you judge' compliance response when the order came down to temporarily provide Windows without IE were probably two attitude problems that got the judge's robe in a bunch. The problem is that if everybody were to act like that in court, the entire judicial system were to break down so judges have a longstanding habit in general to smack down people who try to pull stunts like that.

    The only alternative is to end up w/judge Ito. Bleah.

  • Republicans will never punish MS? Judge Jackson is a Reagan appointee and from what I can tell is a fairly standard specimen of that administration's judicial picks.

  • > The appeals court can stay the sanctions just as easily as Judge Jackson can.

    A shrewd move for PJ would be to actually grant the stay. It won't make any difference in the long run, and it would dull the edge of complaints that he has been operating under prejudice (whether true or not).

  • The party having no choice is the Appelate Court. I am very sure that they are just as disturbed by Jackson actions in regards to Justice's request.

    He //Jackson// even stated he was willing to do whatever they //Justice// wanted.

    That is not a Judge, thats a person with a chip on their shoudler.

    This verdict will get tossed, and it would be good if the Appelate court chastises Justice and Jackson for their behaviour. The worst being was their attempt to prevent Microsoft from having a stay on the penalties of the case while the appeal was heard. That is totally unheard of in law, a defendant is always allowed granted a "stay hearing" versus penalties while the main case is appealed. Justice knew that by kicking it to the Supreme Court that that court could not hear or would not be able to hear the case before October which meant the first phase of penalties from the case would be in effect.

    While I don't agree with Microsoft's behaviour, the Justice departments behaviour is far far worse. Apparently they believe that what they want is what they should get regardless of the law. They are playing Judge, jury, and executioner. How long before they try this versus individuals?

  • When Clinton came in he immediately fired all federal district attorneys. No replacements, some posts were unfilled for over a year, and all that happened was a bunch of conservatives got their panties in a bunch.

    Why would Bush firing Boies mean a hill of beans?

  • I knew, as soon as I posted, that this would be read the wrong way, and it's my fault. When I said that "You can bet this will happen too", I was referring to the DOJ/Judge Jackson's actions, not the action of the Supreme Court. I'm not certain which way the Supreme Court will swing. It's a very difficult choice that will have to be weighed carefully by the justices.
  • by Habanero ( 137835 ) on Tuesday June 13, 2000 @04:47PM (#1004195)

    I heard an interesting interview with Judge Jackson on NPR last week. He seemed actually relieved that there is an appeals process and that his decisions would be reviewed by other people. The standard appellete process including the district court's turn, is, in a way, reassuring.

    I had the opinion that Microsoft may want to prolong the appeals process as long as possible for the simple reason that the interim provides an opportunity for profits in a business-as-usual way.

    But now, I think, that MS wants to prolong the process for another reason. Indeed, Gates and Ballmer have been quoted as saying that they are "so confident that MS will win on appeal, that they are not even going to plan for a breakup" as Jaskson ordered. However, I now think they are seriously planning for a breakup. It would be an egregious irresponsibility to their shareholders and customers not to plan for a breakup. And, I think it's such a complex job, requiring such a finesse of their employees' and customers' feelings, that they can use the extra time that a lengthy appeal via the usual chain of courts provides.

    So, my guess is that first the appeals court will hear the case and that it won't be rushed to the Supreme court. Government may feel it's more prudent not to rush things and to have important decisions reviewed and MS may favor a longer appeal process.

  • I'm sure if Creative would/could make a DVD player for linux it would.

    Interesting example - Creative is, AFAIK, the ONLY DVD decoder card manufacturer that DOES support Linux. I have a Creative Dxr2 decoder card, which works great with Creative's own GPL'ed drivers [creative.com]. Picture quality is equal to that of the Windows drivers, and TV-output even works.
  • by Black Parrot ( 19622 ) on Wednesday June 14, 2000 @02:31AM (#1004200)
    > The appeals court acted BEFORE they got the actual appeals paperwork - which means that they accepted the case BEFORE they could possibly decide whether the appeal had any merit.

    According to an article at The Register ("Appellate court will hear MS whinge"), MS did turn in the paperwork -
    And put up it did. Microsoft filed not only notice, but a full brief, with the US Court of Appeals Tuesday afternoon, citing "an array of serious substantive and procedural errors that infected virtually every aspect of the proceedings" in Judge Jackson's courtroom. Almost immediately after receiving the brief, the full appellate court agreed to hear the case "in view of its exceptional importance."
    I agree that the response looks a bit rushed, but it is not clear that protocols were actually violated. I think we may be dealing with another case where part of the story got out before the details did. We should wait for Today's (Wednesday's) news before we get too caught up in debating any presumed "short circuit" of the judicial process.

  • This is *bizarre* I don't normally use windows, and it's only a temporary situation, but right here, on the ""read the rest of this comment" link,instead of to slashdot, it points to

    http://www.microsoft.com/presspass/trial/appeals /06-A%20HREF=

    [there's a paragraph & bold in there too, but slashdot eats them . . .]
    It also happens to the same link in this followup window. Is the slashcode doing something wierd, or is it IE? Do other people get this as well?

  • > Microsoft undeniably has a monopoly but might be able to keep it if they can slow down the case long enough..

    Personally, I think they're screwed even if they do get off. The publicization of the evidence has done them irreparable harm because no one in the industry - not even the clueless pundits at ZD and Gartner - can pretend anymore that everything is as it should be.

    That and the fact that Apache has forestalled their grab at controlling the internet. They are still dangerous due to the sheer amount of money they can throw around, but overall I think their power has peaked and the internet gives the world too many ways to route around them. While Bill was preening in The Road Ahead, the real world took a different fork and Bill still hasn't caught up. Microsoft has simply become too big and to self-obsessed to turn on a dime like it needed to.

    Also, if they get off scott-free again, their behavior for the next few years will undoubtedly be as bad as hit has for the last few (witness BG's anti-PDA e-message even while he was getting thrashed in the current case). They aren't going to have any friends that they can't buy outright, and in fact they will surely end up back in court within two years of any acquital, with all the PR costs that that entails.

    While I personally think that a breakup (plus maybe a bit of jail time) is too good for them, I think it might be better overall to let them fall on their own merits (or lack thereof), and be seen to do so, rather than leaving BG the excuse of "it was all the DoJ's fault". The only reasons I'm not pushing that position strongly is that &lt 1% chance that they can leverage their desktop and their bank account to corrupt enough standards to take the internet back away from us. That and the fact that it would be shameful not to punish someone after such a clear display of how badly they have been behaving.

  • George Bush Jr visited Redmond and said he "prefers innovation over litigation." Microsoft understands those code words perfectly. The IBM case was dropped in 1981 by Reagan's new assistant attorney general for antitrust. A delay could work out very well for Microsoft.
  • ...Before the district court had a chance to employ the Expediting act, to move it directly to the Supreme Court. I saw something like this happen in my home province, B.C. - former premier of B.C. was being charged with a blatant case of insider trading, and the provicial court grabbed the case quickly, before the federal court could get it, so they could let him off with a wrist-slap. Of course, the Appeals court can't let anybody off, but they can sure weaken the case if they want to. This looks very, very sleazy. I think it's well worth scrutinizing how the Appeals court conducts itself in this case, and if strange things are done, I think very sharp questions should be asked as to motivations and allegiances.
  • Was anyone else amused by the Microsoft copyright notice on the web page with the Court's order?
  • That's why we don't put legal authority into the hands of the drooling sheeple. We have judges who presumably (at least sometimes) have clues. Otherwise you get mob rule as the majority decides to do crazy stuff like kill all the Jews or execute anyone caught with a joint.

    I don't see why you use the Holocaust as an example. It did not occur because the majority of the German people suddenly decided they disliked Jews; it was largely perpetuated at the hands of Hitler and his cabal -- the (quasi-kinda-sorta)elected/legal government, essentially the conterparts to those you claim are protecting us from ourselves.

    For what it's worth, I'd also like to remind you that it's entirely possible for moderately intelligent, well-informed members of the public to support Microsoft. Just because you don't doesn't make it intrinsically wrong conclusion.

    (Naturally, I speak for myself here. Whether or not I qualify as "moderately intelligent, well-informed", I am a member of the public, and I am a proud Microsoft customer, supporter and shareholder. Yeah, crazy, huh?)

    Personally, I think your attitude smacks of elitism and if anything, undermines your point. I'd say, on the whole, our legislators are generally well-educated, presumably intelligent and America's "best and brightest." And look how badly Congress is capable of screwing things up. I doubt the track record of the general public could be that much worse :)


    Ah, one last thing. Yeah, I know you were referring to judges in your example, but they're not necessarily paragons of enlightenment. Here in Texas, they're often elected (in a lot of districts, the candidate who calls himself a Republican will almost automatically win, no matter how unqualified he is) and at the federal level, they're politically-motivated appointees a lot of times. So to sum up... they're not perfect, I guess. Or something.
  • by EricEldred ( 175470 ) on Tuesday June 13, 2000 @06:44PM (#1004220) Homepage

    I hope we get a better understanding of why the Appeals Court took the case even before the District Judge had issued an opinion about the stay.

    But I wonder if Microsoft's haste and hyped claims of damages might not have the unintended effect of persuading the Supreme Court to take the case first. (I noted with amusement the angry comment in Microsoft's appeal brief that, prior to Judge Jackson's finding of fact, Microsoft enjoyed the largest capitalization of any firm--in other words, placing all the blame for the NASDAQ collapse on Judge Jackson's attempt to apply the law to technology economics--and not Microsoft's bad management.)

    As one (in the case Eldred v Reno, to overturn the copyright extension act) who is now facing the exact same Circuit Court of Appeals, I ought to state that I do not believe they are biased, nor that one can predict which way they will rule by their political persuasion. However, I hope that the justices will examine the unprecedented 39-page appeals document with some care. For example, I hope they do not agree with Microsoft's characterization of Larry Lessig's friend of the court brief on the tying issue. (After all, Lessig is my lawyer too.) There they completely distort the brief and are trying to use psychology instead of logical legal arguments. Microsoft's usual practice is to keep trying with the hope that version 3 or 4 of the product will finally be okay. I hope nobody buys that here!

    Discuss in OpenLaw [harvard.edu]

  • Found a pic of our pal OOG THE CAVEMAN [digitallaughter.com] posting to Slashdot.

    Yes, I know, this is OT; but it is intended to be funny. Please treat it as such.

  • Bill Gates, on Nightline, claimed that a direct appeal to the Supreme Court would have only included the federal portion of the case; the state part had to go to the Appeals court first anyway. If that were true, a direct SC appeal would have had the effect of making the litigation more complex and slower to resolve.

    Any lawyers care to comment?

    Steven E. Ehrbar
  • by dbrutus ( 71639 ) on Tuesday June 13, 2000 @06:46PM (#1004225) Homepage
    Try looking here [csn.net] for a starter article, or maybe here [geocities.com]


  • Tomorrow the DOJ can formally ask for the Expediatary Act and the judge can certify the case as meeting the Act's stipulations. Then, the Supreme Court has the opportunity to take the case, out of the district court's hand. You can bet this will happen too.

    I sure hope you're right, because if Microsoft manages to flout the spirit of the Expediting Act like this it will be another sorry day for American justice.
  • I don't want to wait an extra 3-10 seconds for the browser to open.

    That happens because IE is *preloaded*! Even if you "uninstall" it. Sure, Netscape could preload too, but then you'd rightly object to waiting an extra 3-10 seconds for your computer to boot, or about having lost several MB of memory.
  • ...there are a plethora of SC opinions on the virtue of taking these cases through the appeals process, to isolate the true constitutional questions. In short, I highly doubt the SC will take this case away from the DC Circuit.

    The AT&T case was expeditied, why shouldn't this one be? In the AT&T, both sides agreed to use the expediting act, but I don't see why that should make a difference either.
  • by GenChalupa ( 150051 ) on Tuesday June 13, 2000 @04:58PM (#1004233)
    The Supreme Court will not hear the case before the district court.

    The government's legal strategy against Microsoft in Jackson's court was "back up the dump truck, give him every shred of evidence and argument possible."

    The case ranged from Netscape to Java, from MSN to "Channels."

    The DOJ attacked MS with a double barrel shotgun.

    To argue before the Supreme Court, you need to attack your opponent with a scalpel.

    The Supreme Court *never* takes undefined cases like that. Remember, the High Court does *not* function like a typical courtroom. The Justices will call in attorneys from MS and the DOJ, and will *grill* them unmercifully; the questions asked will be carved with an exacto knife.

    There will be no witnesses. There will be no "presented evidence." There will be no cross-examination.

    That is what the appellate court is for. They will take the (IMHO) very random case from the DOJ, and narrow it down, if you will. By now, both sides have sharpened their arguments considerably. Higher legal precedents will be examined; feelings will be hurt.

    To whomever stated that the case is still likely to go to the Supreme Court in lieu of the Appellate: You are dead wrong.

    1. By agreeing to expedite their hearing of the case, the Circuit Court of Appeals removes virtually every reason for the case to go to the High Court. (The DOJ's argument is that possible consumer harm warrants the Supreme Court hearing the case now. However, based on scheduling, the appeals court could hear and rule on the case before the High court could touch it anyway!)

    2. Not only has the 3 judge panel agreed to hear the MS case.... the entire District Court panel will hear the case en banc. That is unprecedented!! (Three of the ten judges opted out, leaving the court pro-MS, 4-3) With that kind of unheard-of force from the Appeals court, the Supreme Court won't touch this thing.

    Quite frankly, things now look very bad for the DOJ. This appeals court has *always* sided with Microsoft on even the most minute of matters. Think Penfield was hard on MS? The same fate awaits the DOJ.

    What leads me to this conclusion? Firstly, four of the the seven judges presiding over the appeal are staunch Conservatives. (Jackson, though a Reagan appointee, has always been center-of-the-line, and quite anti-MS.) Secondly, this same court flat-out rejected Jackson's two previous rulings on Microsoft. (This happens less than you might think... two slaps in the face for quite similar legal matters.)

    Plus, the DOJ now looks quite foolish for having the audacity to ask Jackson to withhold his ruling on MS conduct stay requests. Regardless of Jackson's opinion on the matter, the The District Court of Appeals has now basically said, "That'll be quite enough out of you. We'll take it from here."

    Love MS or hate them, legally-speaking, you can't help but be shocked at the level of incompetence the government has displayed in this case. From the infamous Netscape-buyout offer from Barksdale to the amazing shifting market that invalidated many of the DOJ's arguments, to this latest stay fiasco, the DOJ fought like a lightweight.

    "But they won" is hardly an argument. Jackson has never pretended to be impartial. (Two previous hard-hitting verdicts against the company, the fact that he - not once - accomodated a filing by MS... the fact that he basically took the DOJ's closing arguments and put his name on it for prelems, the fact that he spent about an hour deciding the fate of the company...) Microsoft never stood a chance in his court.

    I was surprised, not by the fact that he ruled against MS, but the fact that he didn't order Bill Gates' death by hanging.

    I also strongly am offended that he punished Microsoft because "they exhibited no remorse." Umm... if you are basing your entire case on "WE ARE 100% INNOCENT", logically speaking, why would you exhihib remorse in trial or in public? That would undermine your argument's foundation. Did he expect MS to apologize for the decline of every company they offended? These aren't murders, for christssake, these are multi-billion dollar businesses.

    Frankly, if I ran the DOJ and wanted to go after Microsoft, I'd have one argument: "They put that talking paperclip in Office."

  • by SimonK ( 7722 )
    13 states are also litigants, so even in GWB does get the DOJ to drop the case, it will not stop, though it may lose momentum.

    I don't see it as inevitable that he will however. There are probably just as many powerful interests (Oracle, AOL etc) pushing for the case to continue as opposing it. His recent comments re what should be illegal under anti-trust not only do not match the current long-standing legislation (which is broader), but also may simply be pandering to the public sympathy MS still has.
  • by Bernal KC ( 10943 ) on Tuesday June 13, 2000 @02:21PM (#1004239) Homepage
    Wired has more info here. [wired.com]

    Interesting to note that the entire appeals cout will hear the case instead of the usual three judge panel. Does anyone have more info on why, or how unusual this migth be?

    The Yahoo piece suggests it was a coup for MS to get it in front of the appeals court instead of going directly to the Supreme cout. I'm not so sure. To me it looks like Judge Jackson wins since his refusal to stay the conduct rememdies seems to have light a fire under M$'s arse.

  • A quick note - Microsoft is perfectly entitled to this and we should not complain - they ARE the defendant, and as such are afforded every protection the law offers them - including this. Oh, and incase you think this is an economic sanction, I'll remind you that stock prices jumped up on news that Judge Jackson had ruled for the breakup. Even the baby-bills will be profitable.
  • You make a good point about the ideological make-up of the Supreme Court and its relationship to this case. For many recent decisions, the breakdown has been Rehnquist, Thomas, Scalia, Kennedy, O'Connor versus Breyer, Souter, Stevens, Ginsburg. But ultimately, it really should come down to the relevance of the Sherman Act. And who knows how these Justices will view this with respect to the Constitution.

    AFAIK, Rehnquist has normally taken a hands-off policy with regard to government intervention. Scalia is a strict Constitutional nut (Internet? Jefferson said nothing about the Internet:)), and Thomas is also hands-off. The more liberal members have taken a past position that government intervention is acceptable. That leaves O'Connor and Kennedy. They are the swing votes.

    Your main point is insightful. This is somewhat uncharted waters with respect to this court. Furthermore, many ppl seem to think that the Court of Appeal will have the final say in this case. I get the feeling that most ppl think that the Court of Appeal that has overturned previous Jackson decisions against MS has the ultimate power.

    Finally, MS has indicated that there were flaws in the procedure in which the Finding of Facts were derived. This is significant as the FoF serves as critical basis for many of the suits against MS. You indicated that the FoF is important and I agree. Therefore it should be interesting to see is the FoF survive the appeal's process.

  • And don't forget that all of this will be for naught when good ole' boy GW gets elected and has the Justice Department drop the case entirely...


  • This makes me happy to see that this happened. Quite frankly, I'm one of those Microsoft Linux hybrids... I like both equally (Windows for fun and productivity, Linux for all my servers). I guess I'm one of the few people who likes Microsoft at Slashdot (my Windows crashed about 2-3 months ago, I guess I'm lucky, but then again, neither does my P75 running Windows 98 SE also... that might have crashed a year ago, *knock on wood*).

    I feel Microsoft has been done a misjustice in this whole case - and the monopoly? The market evens them out within a few years (i.e. IBM, American cars, American steel, railroads, cable, and MANY oher companies. This will pass and I hope that Microsoft doesn't have to spin Windows off in Windows Inc, because then Windows won't progress as fast. I agree with Netscape's Jim Clark (the article I posted [slashdot.org]).

    Finally, Microsoft gets a break - and I feel that this is great. (here come the flames :-) )
  • From the New York Times copy of Microsoft's appeal [nytimes.com] (no registration required) as viewed on Internet Explorer.

    The court, however, rejected plaintiffs' exclusive dealing claim, holding that the challenged agreements with various third parties "did not foreclose enough of the relevant market to constitute a € 1 violation."

    I'm sure they wanted a (section) and not a € (euro) symbol there.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • > Microsoft's usual practice is to keep trying with the hope that version 3 or 4 of the product will finally be okay. I hope nobody buys that here!

    Well, the had better make it version 2 or 3 this time, because there's not a fourth court to hear it!

  • The GOP is (rightly) concerned with anti-trust as a legal concept. Put simply, this particular legal theory is horrible and should be done away with.

    What actually should have been done with MS is for them to be convicted of the criminal conspiracy to commit fraud on their ISVs and their customers under enough counts to trigger criminal RICO sanctions. This is multi-billion dollar fraud and this kind of law enforcement would have no Republican detractors. But Clinton-Gore decided to go the anti-trust route because they knew that they would be making partisan points and reviving a moribund liberal theory, that corporations are the enemy and only Dems will protect the 'little guys'.

  • Part of the reason for not going to the supreme court is that due to the way the case is structured only part of the case would be allowed to be heard by the SC. Thereby splitting the case into two seperate cases which, of course, MS would never want. Especially if they can go this route and get it all swept under the rug... -jingy
  • In addition to the other 13 states, U.S. dropping the case wouldn't avoid the preclusive effect of the final judgment against Microsoft. In particular, imagine all of the private lawsuits in the wings, from Netscape, Sun, Apple, etc. Given all the judgments in the criminal case, those cases will be a cake-walk for the plaintiffs unless MS can wipe the slate clean.

    A post-judgment settlement won't have that effect.
  • Okay, I fixed your quotes and incorrect punctuation.. I hate question marks all over the place..

    I highly doubt that MS owns the rights to DVD.

    You're right. They don't.

    I'm sure if Creative would/could make a DVD player for linux it would.


    But they haven't. How is that Microsoft's fault?

    It isn't. However, Microsoft has behaved in much the same way as the MPAA/RIAA. They would like to control how/when/where people use their software just as much as the movie and music industries would like to control when people view their content. They want money. Lots and lots of money.

    You have a TV card for Linux right?


    It has a video/audio in jack right? Buy a normal DVD player and plug the jacks in.. Easy DVD for linux.. That what I do when I want DVD on Linux..

    You *might* be able to convice me to do that if the TV card had an S-Video input. No way in hell would I do that with RCA jacks or coaxial cable *shudder*

    DVD for linux isn't Microsoft's fault... so but your blame somewhere else for that one..

    Very true..
    Stop the MPAA [opendvd.org]
  • Sure, it will happen, but it is highly unlikely that the Supreme Court will take this case. "Gravest National Importance" (which I believe is the operative standard for this particular type of jurisdiction) is a VERY stringent standard.

    If this case, one involving a company which formerly had the highest market capitalization, does not qualify under this standard, than NO case ever will.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • I don't know about Judge Jackson, but if they did that when a hearing was pending in my Court, my jurisdiction, I'd slam them and heavily fine them for Contempt of Court - and ring the Appeals Circuit judge who granted them the appeal without first adjourning and waiting for my Court to finish, and burn his ears off.
  • Antitrust cases are the exception to this general rule. Findings of fact are reviewed (I believe that correct term is that the case is reviewed de novo form the beginning) though it is unusual for an appeals court to reverse a finding of fact.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • Mr SoapBox Said:
    Still doesn't matter. Because there are plenty of other companies out there that still believe in proprietary code, closed source, restrictive licenses and all the rest. Microsoft was merely the most successful and aggressive player of that game. And lots of people have learned from them.

    What the HELL does that mean? Proprietary/Closed Source and restrictive licenses? Are you on CRACK. Those are NOT the reasons Microsoft are under the gun. Infact if you play by those reasons then cable companies and power companies should have been abolished years ago.

    There is nothing wrong, physically, fundamentally nor socially with having a closed business model. Look at the crusoe processor. Sure it runs an Open Source OS, but you won't find out the specs for that processor, you won't find out how it works and you will be limited by the API and SDK's that the manufacture releases. That goes for Intel and AMD. The X86 architecture as it is today with hybrid cisc and risc is much worse then the software market. You can't optimized your software without paying intel or expecting the sdk/ddk companies to do so.

    This case does no more than give Microsoft a black eye. We can destroy Microsoft, and all the rest of the closed-source world, and their paradigm. Just by continuing to make free software.

    Another pathetic nuance of open source biggots. So tell me when we can sue cisco because i want to run Linux on the routers i own. Let me know when i can screw over Sony because i want to have access to the code on the dvd player because it doesn't work the way i want it. Also i may want to sue Oracle because they're closed source and the licensing schemes they come up with can put someone out of business. (ORACLE is a MUCH MUCH worse giant then Microsoft - Microsoft touches the consumers.. Oracle runs the world. Which one dominating the market really harms the consumer. An OS that is easy to learn or an overly complicatged, restrictive, buggy, expensive and impossible to maintain database system that controls so much of your day to day transactions???)

    Please. get off your anti microsoft bandwagons and use what god gave you. YOUR FUCKEN RIGHT TO CHOOSE.

    Did you understand that? errm NO. lemme spell it out. It is your god given right to choose free software because for some reason you do not want to buy it. It is my right to buy something at the store and plug it in and have it work. Hey, it gives me time to be with my girlfriend, hit the trains with my mountain bike, play my dreamcast, listen to my music, surf the web. I don't have to sit and watch /var/adm/syslog or keep up to date on freshmeat or recompile kernels.

    Yes.. meanwhile at my job i get paid to run linux and hpux servers (ofcourse running Oracle Applications), but that is something i do for work, and i have a toy linux box at home to keep up to date. However, at home i am a consumer. I choose what i want to run and that is a *CHOICE*. There have *ALWAYS* been choices and my soapbox don't you forget that.

  • Well...according to an Bill Gates did on Dateline...Microsoft is looking for the quickest solution. He commented that the "Quickest solution would be best for the consumer. A decision that will allow us to continue to innovate." Blah blah blah...and so on and so forth
    Even though the fact is they are taking the slowest possible route
  • My guess is that if George W. Bush is elected, he could pursue two ways to end this suit more to Microsoft's terms:

    1. Issue an executive clemency order to pardon Microsoft of all charges.

    2. Or have Bush-appointed DoJ officials work out a deal with Microsoft where MS will stay together, but (just to please the anti-MS crowd) we'll see the end of OEM bundling, and Microsoft make available to OEM's a "Plain Jane" version of the successor to Windows 2000 and Windows ME (e.g., the "Whistler" project) that has no web browsers or multimedia software installed.

    By the way, things don't look good for Gore; besides Gore being shackled by the Clinton legacy, Gore is strangely unfriendly to news reporters, in sharp contrast to Bush being surprisingly accessible to reporters even now.
  • > That still doesn't explain why the Circuit Court so eagerly took the case, even before there was a formal appeal--the brief Circuit Court statement refers only to the great importance of the case--and that makes one wonder if the Supreme Court might wish to take it first.

    Yeah, for me this really makes the CC look bad, but I suspect that we don't really have all the facts in hand yet. We may find out tomorrow that they actually have followed procedure, and the news sites just didn't have all the facts straight.

    On the other hand, if they really did break protocol, it's tempting to believe that the SC will go ahead and expedite just as a way of slapping them for it.

  • Yes, it's open to interpretation - and Microsoft gets to interpret it. The trial focused on Netscape, which was both an application and a middleware product (it includes a Java Virtual Machine), competing against MSIE, which did the same thing but was bundled with Windows. Consequently, the DoJ wants to take MSIE and associated middleware out of Windows. With a two-way split, that puts it with the rest of Microsoft, which is really just as bad, but they can't really arbitrarily say that Windows Inc. gets to keep the middleware now - it would defeat the main purpose of the split as a remedy for the problem that was discussed in the trial. Microsoft already contends that a split is inappropriate; doing the split any other way would be even less appropriate. Also, this is more than just my opinion. From section 7c of the Final Judgement:
    Applications Business includes but is not limited to the development, licensing, promotion, and support of client and server applications and Middleware (
    e.g., Office, BackOffice, Internet Information Server, SQL Server, etc.), Internet Explorer, Mobile Explorer and other web browsers, Streaming Audio and Video client and server software, transaction server software, SNA server software, indexing server software, XML servers and parsers, Microsoft Management Server, Java virtual machines, Frontpage Express (and other web authoring tools), Outlook Express (and other e-mail clients), Media Player, voice recognition software, Net Meeting (and other collaboration software), developer tools, hardware, MSN, MSNBC, Slate, Expedia....
    Notice the specific mention of Media Player. I'm betting they'll take DirectX and NGWS also, because although Windows Inc. is prohibited from doing evil things with that kind of this, MS-Apps is not.


  • What I find so ironic about this entire case is that when you look at Solaris 7.x, do you know what you do to search system resources in graphical mode? You use a WEB browser!! (Scott McNealy conveniently forgets to mention this in his anti-Microsoft diatribes.)

    And look at how Konqueror for KDE and the upcoming Nautilus interface for Gnome; gee, why are they using the "web" model to search system resources?

    In short, while everyone derides Microsoft for integrating Internet Explorer into Windows 98, they seem to conveniently ignore the fact that Solaris 7.x and the KDE/Gnome interfaces can do just the same....
  • When a court issues a final judgment, it typically divests itself of jurisdiction except to the extent necessary to enforce that judgment. In a case such as this, things get pretty complicated.

    There is a process for post-judgment motions and appeals, with respect to which Microsoft has pending motions. I don't recall my appellate procedure, but the filing of the Notice of Appeal may have the effect of waiving the post-judgment motions, or might not.

    However, the Supreme Court direct route is subject to a special statute creating S.Ct. disretionary jurisdiction on direct appeal after a District Court certification, under which the District Court may retain jurisdiction to certify even after a Notice of Appeal is filed. Again, the particulars would depend on the particular statute -- and this is probably itself an interesting litigable question.

    -- hey, this thing doesn't happen everyday. Most statutes are regularly tested, even after they are recently passed, so there is ususally clear understanding what they mean and how they work. This case will raise lots of questions of first impression, including, most likely, the questions of appellate procedure raised under these never-tested statutes.
  • It is true that the appeal has to go on the Appeals Court's docket. Tho' as of this point in time MS has simply filed a notice that it will appeal, the appeal hasn't actually been filed. So no one, not the
    Government or even for that matter MS's attorney actually know what the grounds of the appeal will be. Judging from the quotes attributed to MS's attorneys, they plan to challenge everything they can
    think of.

    The Notice of Appeal creates the appellate jurisdiction, and fixes the dates for everything else to happen. There isn't really a "filing of appeal" process, although there are various documents that must be promptly filed with the appeallate court after the Notice of Appeal is filed with the District Court. The NOA is THE jurisdictional filing.

    As to the grounds for appeal, that depends upon the definition of the term, the NOA as filed limits the scope in theory, to appeals "from the Final Judgment entered in this action on June 7, 2000, as well as from the Order entered in this action on April 3, 2000 (save from the portion of the Order dismissing the plaintiff's first claim for relief)." Similarly broad language was used for the NOA in the states cases.

    You correctly write that we don't know what are the details until briefs are filed, which won't be due for months, and the time for that will probably be extended as well.

    Once MS does file its actual appeal, then the Government responds.

    Agaain, you seem to be confusing the lodging of an appeal with the process of filing briefs. The process has already begun, and jurisdication has already vested with the Circuit Court. Motions, indeed, have already been filed in that case! (See, e.g., the motion to file a brief for a stay pending appeal in case the District Court denies the motion. [microsoft.com])

    Furthermore, the appeal must deal strictly with matters of law and court procedure. Questions of fact have been decided by the trial court and are only subject to review if the findings are so out of accord
    with the record that no rational connection can be made between the record and the conclusion. As a practical matter, the appeal will focus entirely on the process the court used in the trial and whether
    or not it accorded with published Federal procedural guidelines, and with interpretation of the law.

    You are generally correct that appellate courts review of facts are narrowly circumscribed, although the statement of the standard is not entirely correct in particular. This doesn't work so much for Microsoft as again it, since the fact findings are where things went the worst for them. In particular, the particular sentence selected for Microsoft's crime falls in the realm of "fact-finding" to the extent it depends on those fact-findings.

    But it seems likely that the Circuit Court will find in favor of the Government on at least some of the issues and thus limit the issues that will actually be argued before the court.

    It is a big leap from observing that the case has yet to be fully briefed to concluding that Microsoft will win. Only time will tell.
  • Microsoft was hoping for something like this. That way they can stall and hold out until the next presidency. They are hoping the George W will get elected, as he will take it easy on them. It wouldn't just the NRA working from inside the White House...it would be Microsoft as well. Now let's just hope that this court finishes the case quickly and that it gets up to the Supreme Court by the end of the Clinton presidency. Microsoft undeniably has a monopoly but might be able to keep it if they can slow down the case long enough.. Remember when they were going to submit their resolution of the case to Jackson and asked him for more time? He told them that they had two years already! Let's just not make it three.
  • Note that probably the most important part of the announcement by the appeals court is that the *full court* will take the case.

    Normally appeals are heard by a 3-member panel of the full (11/12 member) court --- and the losing side can appeal the decision of that panel to the full court.

    The appeals court has short-circuited that in this case, agreeing to hear the case directly. That's *extremely* unusual ....
  • Just to point out some history. The "Findings of the Facts" on anti-trust cases have never been overturned. This puts Microsoft at a significant disadvantage. Unfortunately they have shown to do better in the appeals courts.

  • by Detritus ( 11846 ) on Tuesday June 13, 2000 @02:37PM (#1004335) Homepage
    I believe the usual procedure is for the case to be heard by a three judge panel. That decision can be appealed and heard by all ten judges (en banc) if the court grants an appeal of the original decision. Otherwise, they have to petition the Supreme Court, which can refuse to hear the case. Three judges have disqualified themselves, leaving seven judges to hear the case.
  • "M$ knows that if they go...split up sooner i really doubt that msoft will be split up. the DOJ's demands are (as usual) way too broad to be accepted by the appeals court. the problem (IMHO) is that the DOJ doesn't quite understand the software industry's processes. amazingly, i would have to agree "slightly" with M$ on the ruling. in terms of "rights" to company code, the DOJ has no right to limit what M$ has to open-source, or not combine. M$ wrote the program, and they can do whatever they want with it. now, admittedly they haven't by any means played fair, but i would hate that if I wrote a copyrighted program that turned super-popular, the DOJ could force me to open it up to other developers. I wrote it, you can't make money off it unless I give you liscense. the DOJ should base there case on M$'s bullying of companies and control over OEMs through threats and money etc... the points about not letting OEMs customize windoze etc. are just silly and will probably ruin the case. just my 2-bits --rhad
  • This was before Judge Penfield Jackson could hear the governement's request to by pass the lower courts and take the case to the Supreme Court.

    I admire the unusual speed at which Slashdot presented the community extrodinaire with this breaking news story.

    I just wish a spell-checker had been consulted prior to posting.

    That aside aside I also recognize this as a victory for Microsoft, b/c each legal step before the end will delay the end and perhaps slow down the break-up rush. Who knows? A year from now, sentiment may change and the powers that be (then) may not enforce Penfield's decision.

    I'm still betting that Microsoft pulls a marketing coup out of this somehow...

  • by dillon_rinker ( 17944 ) on Wednesday June 14, 2000 @09:40AM (#1004338) Homepage
    Remember the other suit, back in the early 90's IIRC, the one that didn't accomplish anything?
    Oh, it accomplished something. Prior to the consent decree of 1994, Microsoft charged for its licenses based on how many PCs each OEM sold. Each OEM had to report how many PCs they sold to MS (important point - remember this). The government decided that this was very, very bad. They said (among other things) that MS could NOT charge for every machine an OEM sold.

    However, they did agree that MS could charge for every machine sold within a model line. If an OEM wanted to license MS software on a particular model line, MS would charge them for every machine sold within that model line. So if a vendor wanted to sell PCs with OS/2 or DR DOS preloaded, they could create a separate model line and not have to pay MS. OEMs now had to report to MS how many PCs they sold within each model line (important point number two).

    Because of the market dominance of MS in the consumer OS space, most OEMs didn't create model lines to sell other OSi. (Correct me if I'm wrong - anybody here buy a PC from a major OEM in the last five years with an OS other than Windows preloaded?) MS went from knowing how many PCs each OEM sold to knowing how many of each model they sold. The intelligence they received from the PC industry was increased by an order of magnitude. They knew what consumers bought and could tailor their marketing accordingly. They knew better than ANYONE what the consumer PC market was doing and where it was going.

    In short, the consent decree of 1994 gave MS a powerful tool that assisted them in moving to where they are now. The government apparently didn't realize in 1994 that MS already so dominated the market. None of this was foreseen by DOJ, but you can bet your pants it was foreseen by MS. MS employees are not stupid.

    So, anyone care to guess what nasty unforeseen consequences of this trial we'll see in the next few years?
  • Umm... if you are basing your entire case on "WE ARE 100% INNOCENT", logically speaking, why would you exhihib remorse in trial or in public?

    If you catch your kids with their hands in the cookie jar, you go harder on them when their defense is "I didn't do it" than if they just 'fess up and say "I'm sorry." A defense of innocence IS a lack of remorse, if you are, in fact, guilty.
  • The DOJ has filed papers to have it sent straight to the Supreme Court. If that succeeds and the Supreme Court agrees to hear it, they'll take it right out of the appellate courts hands. So basically, yes, it still could go straight to the top.


  • >Everyone seems to think MS wants to drag things out for as long as possible, but I'm not so sure.

    MS's strategy has always appeared to be ``control the momentum".

    BillG hears that the GUI interface is the wave of the future? Find one, market the hell out of it, & run all of the competitors into the ground.

    BillG hears that the Internet is the wave of the future? Find a means to access it, market the hell out of it, & run all of the competitors into the ground.

    (Then again, this has not worked in every case: take Artificial Intelligence. BillG heard about it back in the early 1990's when it was regaining some life, & decided it was the wave of the future. So what did MS give us? MS Bob, & later that obnoxious paperclip. As a result AI has gone to the Buzzword Graveyard along with multimedia & fast-track development.)

    So the legal momentum is now against MS? Slow the momentum down to a halt, & try to reverse it. And even if they can't reverse it, every day doom is delayed is another day for a miracle to come & rescue them.

  • by mikpos ( 2397 ) on Tuesday June 13, 2000 @02:54PM (#1004347) Homepage
    In Canadian law, at least, you have to have a reason to appeal. I don't know American law very well, but it seems (inferring from the Wired article) that that's also the case in the US. So what grounds are they using for the appeal?
  • by ceymick ( 78591 ) on Tuesday June 13, 2000 @02:55PM (#1004349) Homepage
    I believe Bill's got his law mixed up. If the case were in a state court, with federal and state issues, then it could indeed be bifurcated, with the federal portion going into the federal system, while the state portion remained in the state system (although with a case this big and complex, the court would never allow it to be split into two separate cases).

    However, if the whole case started out in the federal court, this doesn't apply. If Penfeild grants their motion (how much says he does?), then the Big 9 can take it if they want to, and the Middle 3 lose out. And they'll get all of the case, not just any federal issues.
  • So, Microsoft buys some time.

    I wonder how much it cost?
  • MS has some breathing room now before the sword falls. It's quite likely the appeals court will stay the conduct restrictions, meaning business as usual for the duration. On the other hand, it's a bit of a loss as the court is meeting en banc...

    Now MS can't ask for a second hearing by the appeals court before having to go before the Supremes. Though what Diana Ross has to do with it I don't understand :-).

  • by coyote-san ( 38515 ) on Tuesday June 13, 2000 @02:43PM (#1004358)
    I honestly can't figure this out.

    The appeals court acted BEFORE they got the actual appeals paperwork - which means that they accepted the case BEFORE they could possibly decide whether the appeal had any merit. The appeals court acted BEFORE the trial judge could address the question of whether the DoJ was legally entitled to request the appeal be initially heard by the Supreme Court.

    I'm not a lawyer, but it seems like they've just made it an absolutely certainty that the Supreme Court *will* ultimately accept the appeal, if only to publicly chastise the lower (appeal) court for acting with such unseemly haste as to cast the impartiality of the entire judiciary into serious doubt.

    Think about it, after jumping the gun like this will anyone be able to view this court's overturning the trial judge's decisions with anything other than profoundly deep cynicism? They couldn't even wait 24 hours (for the papers to be delivered) for even the appearance of impartiality - no, it's clear at least some of those judges are foaming at the mouth to have their say. And that is precisely why they can't be permitted to have the final word.

    Maybe there will be justice (pun unintended) and the Supreme Court will announce that they, not the appeals court, will be hearing the appeal directly since the appeals court has demonstrated itself incapable of acting in the Constitutionally mandated fashion. Or, at the very least, the Surpremes will accept the case, but immediately return it to a *different* lower court for the first round of appeals.

    Meanwhile I want a list of the names of those justices. Appointment to the federal bench is for life, but I want to do be sure that this little trick is remembered if any of them are ever nominated for a higher court.
  • by muldrake ( 171275 ) on Tuesday June 13, 2000 @02:45PM (#1004359) Homepage Journal

    Interesting to note that the entire appeals cout will hear the case instead of the usual three judge panel. Does anyone have more info on why, or how unusual this migth be?

    The circuit court is probably doing this en banc because regardless of the decision, the first appeal by whatever party is likely to be a request to rehear it en banc.

    So by doing it that way in the first place, they avoid the waste of time of the inevitable rehearing.

  • by YASD ( 199639 ) on Tuesday June 13, 2000 @02:58PM (#1004361)

    So, Microsoft buys some time. And, I suppose, more chances for the ruling to be overturned.

    Does it really matter?

    Let's suppose Microsoft is split in two and restrained from its usual dirty tricks. Let's even go way out on a limb and suppose that the restraints will actually work. Great. Microsoft can no longer reach for market domination.

    Of course, they already have market domination.

    So let's suppose that something else happens. There's another suit and Microsoft gets liquidated. Bill Gates and Steve Ballmer die in the same plane crash. Whatever.

    Still doesn't matter. Because there are plenty of other companies out there that still believe in proprietary code, closed source, restrictive licenses and all the rest. Microsoft was merely the most successful and aggressive player of that game. And lots of people have learned from them.

    And the simple fact is, as long as people continue to buy proprietary software and click on those licenses, the closed-source people will continue to make money and exert control over the computing world.

    The U.S. federal government is a big lumbering elephant, very powerful, but very slow. Look how long it took them to notice all the things Microsoft was doing. Remember the other suit, back in the early 90's IIRC, the one that didn't accomplish anything? We certainly can't count on the Feds to keep the software business competitive.

    That's our job.

    This case does no more than give Microsoft a black eye. We can destroy Microsoft, and all the rest of the closed-source world, and their paradigm. Just by continuing to make free software.

    And on that note, I'm gonna log off and do some hacking...


  • When the administrations switch, Mr. Bush will doubtlessly stop the Justice Department from pursuing this whole thing.

    The President has no such authority.

    In any case, the pathetic weakling George W. Bush can't even shut down a website. I doubt he can shut down the Department of Justice.

    "There is madmen in the world and there are terror." --George W. "Zippy" Bush

  • Not exactly. If their request for a stay is granted, then Microsoft can continue to be evil until the appeal is settled. If not, then they have to clean up their act somewhat within three months.

    If they lose all appeals and the Supreme Court upholds Jackson's ruling, then then MS-OS (a.k.a. Windows, Inc.) is pretty much stuck with just selling, supporting and developing Windows on a vaguely even level with Linux and other operating systems (Apple may be persuaded to release an Intel port of Mac OS X; who knows). However, MS-AP (a.k.a. Microsoft, Inc.) will take everything else, including Office, Internet Explorer, Media Player, Direct X, Next Generation Windows Services (NGWS), the X-Box, whole shebang - and will have nothing to stop them from being completely and totally evil.


  • Folks,

    I think the reason why the Federal Court of Appeals in Washington, DC took this case almost immediately is very simple: they may want to stick it to Judge Thomas Penfield Jackson AGAIN. :-)

    People forget that Judge Jackson has been overturned quite a number of times by this Appeals Court, including overturning two judgements by him against Microsoft. Now that the Appeals Court has taken US v. Microsoft, this means that the chances of the Supreme Court getting the case will go down pretty quickly. In short, don't expect an Appeals Court ruling until around February 2001, and if George W. Bush is elected President, we may not even make it THAT far.
  • by muldrake ( 171275 ) on Tuesday June 13, 2000 @03:03PM (#1004375) Homepage Journal

    I recall Bush saying that he would essentially drop the charges if elected.

    Bush has no such powers. If it were a criminal case, he could pardon the offender, but it's a civil matter. The moron Bush can go blow, President or not.

    For some strange reason, a large majority of the public favors Microsoft.

    That's why we don't put legal authority into the hands of the drooling sheeple. We have judges who presumably (at least sometimes) have clues. Otherwise you get mob rule as the majority decides to do crazy stuff like kill all the Jews or execute anyone caught with a joint.

    A parliamentary democracy sucks, but it's better than what a "pure" democracy would be, which is insanity.

  • by Andrew Cady ( 115471 ) on Tuesday June 13, 2000 @05:00PM (#1004384)
    MacOS, AmigaOS, OS/2 -- all better than Windows. (There are dozens more, too). It's absurd to say that if MS hadn't become a company nobody would be using a computer. Windows's success is pure intertia (read: application support); if it didn't exist, some other OS (probably MacOS) would have gotten that same inertia and would be just as successful. An API is a standard of sorts, and whoever can monopolize the standards can continue to monopolize the industry. It was NOT quality that guaranteed the dominance of the Windows API, but it is the dominance of the Windows API that guarantees the dominance of Windows.

    Splitting up Mickeysoft is a bad idea... I can guarantee that most of the slashdot users are for the split just because it is Microsoft. If it were RedHat or Debian, those same people would be up in arms saying that they shouldn?t be split or whatever.

    I personally don't think MS should be split, for the practical reason that I don't expect it to actually increase competition. However, I do support some corrective action. Why? BECAUSE MICROSOFT BREAKS THE LAW; IT USES ITS MONOPOLY TO DICTATE INDUSTRY STANDARDS THAT MAKE COMPETITOR'S PRODUCTS INCOMPATIBLE, THUS HURTING THE CONSUMER SOME BUT THE COMPETITOR MORE. As it happens, THIS IS ILLEGAL, and that is why MS has been found guilty.

    Debian and RedHat have not engaged in such practices; there is no evidence of them ever harming the consumer in order to harm their competitors, and furthermore they are not monopolies so even if they had it would not be illegal. If Debian engaged in the same practices as MS, of course people would want action against it.

    (and modified standards, which *I* do believe is unacceptable) slashdotters are angry.. ?They have a monopoly! It?s bad!? Do you use windows? No. Why do you care?

    Why do I care? How about because I cannot watch DVD's without breaking the law or buying another OS? You agree that MS has violated standards; well the entire point of standards is to allow communication with other OSes, applications, etc. If I'm using a non-MS OS and MS doesn't obey standards, that means I cannot communicate with MS -- i.e. 80% of the machines in the world. Obviously that affects me; as you can see, I am online. So are you. Obviously the ability to communicate is important to both of us. MS WANTS TO REMOVE THE ABILITY TO COMMUNICATE FROM THOSE WHO DO NOT USE WINDOWS. That is why I care. MS is attacking MY ability to use Kerberos, MY ability to share files with other computers on the LAN. MY ability to print files on the LAN. MY ability to write documents and share them with my friends. MY ability to get documents from my friends. MY ability to get digital music or video from my friends and view it. MS wants me to have to give those up for using an alternative OS, whether or not I am willing to write or buy or otherwise get the code necessary to do so, and that is why I care.

  • by Drashcan ( 113359 ) on Tuesday June 13, 2000 @03:08PM (#1004388)
    No Dude,

    Small mistake over here. Socialism says: everything to the state. A strict socialist view on the economy is: "Nationalise everything", therefore MS := state company. By the way, this would be even worse: in a strict socialist economy MS would be allowed to keep its monopoly, although as a state company. Read an annotated version of 'Das Kapital' of Karl Marx if you want to know more.

    A capitalist, supposing he is acting in a democracy, is normally (from the theoretical standpoint) a free market liberal. Of course he keeps his hands off of the market (businesses) as long as his capitalist system is not in danger.
    A monopoly endangers that system since in the long run it can lead to an economic dictature. And an economic dictature, which by the way also implies a social one, leads to less free market.
    So we end up with a dictature, in the "economically speaking" best case with a little capitalist flavour (Chile under Pinochet for example). A true believer in free market liberalism should also be for a minimum of market regulation, against too high concentrations of economic power.
    Remember: capitalism/free market liberalism says you can move up on the social scale (that is/was its eternal argument against socialism which states the opposite - that's why to achieve mobility an "all overthrowing revolution" is required). Allowing monopolies would automatically mean a denial of this mobility.

    Now comes the paradox: although the democratic (Clinton) administration is a little bit (for European standards it is) more left wing than a republican one its stance in the MS case is more capitalist/free market oriented than that of many republicans who are in favour of a hands off approach to this MS case.

    The PIG One

  • by Mr. Barky ( 152560 ) on Tuesday June 13, 2000 @03:20PM (#1004396)

    They may have 60 days to appeal, but they also have a 90 day deadline to implement Judge Jackson's court order. Putting it off 60 days would give them only 30 days to implement the order if their request for a stay were denied for any reason.

    Microsoft is a huge company and the 90 days that they have to comply with the order is probably fairly difficult as it is. They need to know immediately whether a stay will be granted. The rest of the appeal they want dragged out, as they can continue making their monopoly profits as long as it's on appeal. (Well, even when they're broken up, they'll be two monopolies instead of one - they'll still be able to get monopoly prices, though that may be somewhat limited by the conduct remedies).

Thufir's a Harkonnen now.