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Microsoft Loses Delay Appeal 278

cheesethegreat was the first to submit that Microsoft has lost their appeal to delay their case by requesting a review with the Supreme Court. We mentioned the appeal a few weeks ago. The link doesn't say much more than that the appeals court denied the delay.
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Microsoft Loses Delay Appeal

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  • Everywhere here is saying "split them. make Ballmer prez of one, and Allchin prez of the other, etc" Who the hell said anything about competition? Face it, if you break them apart, you have absolutely no guarantee that they won't cooperate.
    • Yes, you do. In court-ordered breakups due to the violation of antitrust laws, there are very harsh restrictions on what the resulting companies can do. One of those restrictions would most definately be working together. They'd also probably ban aquisitions of other companies as well as cross-licensing. If they do a breakup, it'll be tough.
      • Yes, but in accordance with the original point, since when have they _listened_ to the courts? At some point they still have to obey. I don't think that is ever going to happen. Microsoft's culture is very similar to a cult. They are beyond considering themselves subject to (human?) law. To them it is just input to be worked around.

        This suggests a possible remedy, though: leave Microsoft just as it is, but _jail_ every single leader and 'culture setter' in the place. Gates, Ballmer: everyone giving the orders.

        The Allies did something similar with Volkswagen after WWII: they kept the factory, had it attempt to build cars (the British loved the early Volkswagens and fought like tigers to protect the factory from scavengers and seekers of war reparations!) and a British Army officer was de facto head of the company until they brought in Heinz Nordhoff as CEO- who promptly got busy and built Volkswagen into what it was today. But the point is, Volkswagen was effectively run by the British Government for a brief period after the war, because the people originally in control of Volkswagen (the Nazis, obviously) were criminals and removed from that position.

        It's worth noting that _in_ the context of Volkswagen, the Nazis were primarily concerned with bringing a 'people's car' to Germans, though they also set up a rather nasty payment plan (hardly consumer friendly- didn't even guarantee you got a car after paying in all the money, just a 'certificate of ownership'). Their crimes were not directly related to Volkswagen, but they were still removed from society and from the leadership of the company.

        It is possible that the specific _acts_ of Ballmer, Gates etc. directly relating to Microsoft are not all totally evil and wrong. However, the sheer amount of assault they are committing on the legal system and the sheer determination they show to control information technology for the world suggest to me that they still need to be removed from control of the company. Jail the fuckers. Let's have a new breed of Microsoft leadership that aren't megalomaniacal royalty at heart...

  • The federal court can't wait to bend over backward [] and give Microsoft more latitude to continue to abuse their monopoly ...
  • clarification (Score:2, Redundant)

    by sethg ( 15187 )
    The Supreme Court has not yet ruled on the appeal itself. However, the appeals court said that the rest of the judicial process (remanding the case to a lower court for tying up the loose ends) should not wait for the Supremes to make up their mind.

    Presumably, by the time a new trial-court judge is chosen and a new trial is scheduled, the Supremes will have a chance to either take up or turn dwon the appeal.

    • should not wait for the Supremes to make up their mind.

      Why? Are the Supremes talking about a tour?

      Personally I've always been more partial to "Gladys Night and Pips".

    • by ackthpt ( 218170 ) on Friday August 17, 2001 @12:24PM (#2155552) Homepage Journal
      However, the court affirmed Judge Jackson's conclusions that Microsoft does have a monopoly in the market for computer operating systems and maintained that monopoly power by anticompetitive means which violated U.S. antitrust laws.


      In a news conference Thursday afternoon, Microsoft Chairman Bill Gates said he was pleased with the ruling, which he claimed "removes the cloud of breakup from the company, reverses the tying claim and says clearly that we did not attempt to monopolize the browser market."

      It's a wonder his nose hasn't grown a yard by now. Is anyone still unclear on _why_ Gates and Microsoft enjoy such a negative following on Slashdot?

      • "However, the court affirmed Judge Jackson's conclusions that Microsoft does have a monopoly in the market for computer operating systems and maintained that monopoly power by anticompetitive means which violated U.S. antitrust laws." Oh, I guess Linux and OSX aren't considered competiting operating systems?
        • According to the law, you don't have to have 100% market share in order to have a monopoly. You must simply have a large enough share of the market that you can engage in anti-competitive manipulation without fear of losing your market share in the near term. I'd say that MS comfortably passes that test. If they decided to double their prices tomorrow, the vast majority of users would bend over and take it because they need Windows to maintain compatibility.

  • Don't break up the company, instead try this:

    1. fire all the top level executives and all mid-level legal department heads (wholesale) - require that MSFT replace them from a list of people who work in other software firms but have not worked for MSFT (they pick from the short list)

    2. require all specs and interfaces be fully documented and available to all other US and Canadian firms. Every new code release, have an independent auditor scan new code to make sure no unpublished code interfaces are used. Until it's golden and good, it won't go out.

    3. Replace the current board of directors with one where no board member may hold more than 0.1 percent of MSFT shares and recieves no more than $50,000 in options, priced at date of grant stock price.

    4. Put Bill Gates in a dunk tank in Westlake Mall in Seattle, with cream pies (non-toxic) and dunk balls for free, to all comers, for 8 hours a day, 2 days a week, for a six week period. The dunk tank should be heated if the outside temp drops below 70 F or 18 C and towels provided. Prison means nothing to him ... but this will.

    5. Require community service by all managers and execs remaining of 8 hours of coding per week for 8 weeks for Open Source code on a recognized project. Peer review is sufficient punishment.

    6. Require an FTC agent be present at all times for a five year period (exception - when going to bedroom with spouse or significant other) for all executive of VP and above. Any chargable offenses to be charged on execution of said offenses. All monitors and PDA screens to be visible to said agents at all times.

  • Personal opinion. (Score:4, Insightful)

    by styopa ( 58097 ) <hillsr@colora[ ]edu ['do.' in gap]> on Friday August 17, 2001 @01:23PM (#2117465) Homepage
    What I personally think would be the best solution is as such.
    • Most importantly is that one needs to allow for choice. If MS wants to integrate a web browser, mail utility, isp, etc..., let them, but allow for choice. If they want to integrate then they must release all information on how the integration is done, and allow for third parties to replace the MS component with their own, seamlessly. Ie, if someone, or an OEM, wants Eudora instead of Outlook, then they should be able to completely replace Outlook with Eudora and not lose ANY productivity/compatibilty. Third party products should have the ability to merge seamless into MS products. Merging isn't always bad.
      1. Nautilus and Mozilla. Sure it is slow, but it also has a lot of potential.
      2. Any flavor of UNIX or Linux requires that a mail program be installed. They don't have to be set up, but they have to be installed.

      Other things that I feel should be done are.
    • Force MS to release all of the APIs. Have a group of coders from third parties review MSs source code to insure that all of the APIs have in fact been released. Until they give the okay no product leaves the door.
    • All OEMs are treated the same. Same price for OS, all given the OS on the same day. If an OEM wishes to us the OS, MS cannot refuse even if the OEM is also shipping other OSes. Deals must be made in the open.
    • Office products, MS Office, Internet Explorer... must be released for all the OSes that it will support at the same time. Must include support for other OSes other than Windows and MacOS. Including either a Linux or a major UNIX faction (Sun, IBM, etc...).

  • Not a surprise (Score:4, Informative)

    by tadas ( 34825 ) on Friday August 17, 2001 @11:20AM (#2118695)
    This isn't exactly a surprise. The Supremes would really have to find something way wrong procedurally to override a *unanimous* Circuit Court opinion on a limited procedural question.

    The common-law tradition is, in some strange way, like the open-source development process -- it tends to favor "working code". There is a strong bias in the system against mucking with what lower courts have done, and this is done only when the lower court does something that seems to be way out of line. You can see this in what the Circuit Court did to the trial decision -- it found that Judge Jackson was out of line in how he determined the remedy, but didn't throw out the findings of fact (and tossed it back to a different judge for the penalty phase).

    I think that the fact that the Circuit Court's "en banc" decision was *unanimous* cut a lot of mustard with the Supreme Court.

    PS - When I started this post, there were no posts. Since I tried to actually put some (admittedly not a huge amount) care into what I was saying, I guess this wont be a "First Post". I tried, though...

  • When I first looked at the headline I read "Microsoft loses daily appeal"

    Seems like that one would work too :p
  • Better Article (Score:3, Informative)

    by Hobobo ( 231526 ) on Friday August 17, 2001 @11:38AM (#2124406)
    Here [] is a better article on the New York Times.
  • by dpilot ( 134227 ) on Friday August 17, 2001 @01:31PM (#2132371) Homepage Journal
    There have been several suggested remedies, like splitting Microsoft into N pieces, nuke the Redmond Campus, conduct remedies, etc.

    But instead, quite simple:

    To begin:

    All COTS software used by the US government will exchange data in fully documented, non royalty encumbered formats. Only special-order software may use proprietary or secret formats, and special order software may not be used where the function exists in COTS equivalents.

    All wired and wireless protocols used by the US government for public exchange of information will be fully documented and non royalty bearing. Exchange of secret data will be fully documented and non royalty bearing, but that information will be classified to the same secrecy level as the data, and also subject to the Freedom of Information Act.

    Microsoft Windows has achieved "utility" status in the PC marketplace. To that end:

    All terms of all contracts regarding sales and licensing of Windows will be available for public scrutiny.

    Contracts for sales and licensing may not contain terms that exclude competitors and potential comptitors, such as per-system or exclusive usage.

    Simple, but effective. (IMHO)

  • by Anonymous Coward on Friday August 17, 2001 @11:04AM (#2132551)
    A Microsoft employee was found walking down the streets of Bethesda, Maryland. More information to come.
  • Severl liberetarian /. readers (like myslef) have said time and time again "so what if MS has a monopoly. It's not the gov'ts job to interfere." Which is true. But there's another point to make. This so-called monopoly is pretty damn limited.

    In the findings of fact, it says that MS has a monopoly on desktop-level operating systems for the x86 architecture. So freaking what? They dont have any influence anymore on powerpc. or spark. or whatever. They don't have a monopoly (yet) on server OSes. They don't have the embedded market wrapped up (even though they're trying). They don't make the omst popular pvr (tivo). They dominate one, limiting aspect of the computing industry.

    To be a monopoly, they've got to have such extensive control that other distributors are effectively cut off from supplying a competing product. Well guess what? ANYONE is free to write a desktop os for x86. The resources are there, and available. All thats standing in the way is consumer demand and the market's desire to relative uniformity and compatibility. If the market loses interest in MS, MS loses its hold. the market is still in power, not the company. This isn't like oil or the phone lines - microsoft doesn't have all the raw mateirals locked up. There is a freaking difference.

    End rant.

    BTW - I'm no MS troll. I can't stand most MS products (earlier versions of word and to an extent win2k aside) and find its business practices offensive (just not illegal).

    • You are correct: the resources to create a desktop O.S. are out there. Otherwise Linux, Open/Net/FreeBSd and others wouldn't be here.

      A monopoly is not bad or illegal until a company *abuses* that monopoly. IMO, Microsoft has. If you don't believe so, please inform Be and any other now nameless O.S. companies that have been applied any pressure to not deliver.

      Also, Microsoft *abuses* their monopoly by leveraging that monopoly into their other products. Whoever controls the Operating System usually can control *what* can actually run on it and *how* those applications run, including but not limited to that application's performance. Microsoft has pressured OEM's to *not* load software onto the computers that the OEM sells. How? By leveraging the monopoly of their desktop Operating System.

      And what are they doing with XP? Integrated MSN Messenger, Media Player and other applications. While doing that, they *again* pressure OEM's not to include competitor products, even though they say, "it's what the consumer wants". *THAT* abuses their monopoly. I *will not* have a company tell me what I do or do not want.

      So what? They don't control anything but the x86 Desktop market... Of course, they'll *never* try to leverage their desktop Operating System onto other chips (Itanium, Alpha, Mips).. No, they would never do that. They are like the Borg: take a planet(x86), then move on to the next one and conquer it(Itanium). It must be nipped in the bud.

      The government has every right to interfere when a company *abuses* their position in the market place. I'm glad everyone doesn't follow the libertarian point of view of "no government interference"... the economy would die in short.

      Though I appreciate your opinion, I whole-heartily disagree with it. That's what makes countries like the US good, IMO.
    • However, 99.9% of the human population uses the x86 architecture, in a desktop-type mode.

      The server market is just not significant. Very few people run their own servers, and companies don't upgrade their servers/routers/firewalls that often. The cash-flow, per unit time, is very small, even though servers (per se) cost a great deal.

      The embedded market is also a limited one. Many embedded systems are embedded precicely because replacing the hardware or software would be prohibitive. As such, there's just no money in it. It's less a well, and more a puddle.

      Whilst it is true that anybody "can" write a desktop OS for the PC architecture, in order to be competitive, you MUST have OEMs who support it and software houses who develop for it. Many a good system has died, because it was useless to the users. But OEMs are under intense pressure (and have been placed under contracts later ruled illegal) to ONLY supply Microsoft products. Software houses, such as Netscape, SpyGlass, etc, have either been pushed out of business, bought out completely, or had their products stolen. (Microsoft has been found guilty of software theft, in the past, most notably with the disk compression system in DOS 6.0.) Under those conditions, no competitor can thrive, or even survive.

      Microsoft pretty much owns TV-based Internet access, via WebTV. And that means that it has a very strong grasp on Internet-aware appliances, once those develop. After all, that is what WebTV essentially is.

      As for the market deciding -- it no longer has the power to. For the market to decide to switch away from Microsoft, EVERY SINGLE COMPANY, organization, household, etc, that uses Microsoft products would have to change at the same time, in the same direction, to an alternative that already supports the current Microsoft standard. Failure to do so would mean total chaos. Documents, spreadsheets, databases, etc, would be unreadable. Networks would stop working. Printers would stop printing. In short, civilization is as hooked on Microsoft as any heroin addict is on their drug. Microsoft-specific protocols, such as SMB and NetBEUI, and Microsoft-specific file formats, permeate everything. Any attempt to go "Cold Turkey" would be every bit as lethal as it would be for that addict.

      THIS, in my humble(?) opinion, is the great threat Microsoft pose. Their products are just products. The label isn't important. And money, for corporations, is just play-stuff, anyway. The numbers mean nothing more than the numbers on a pinball machine.

      BUT the addiction factor. Now, that CANNOT be escaped. Microsoft can tell the market exactly what to do, and the market will respond. The price of failure would be too great.

      IMHO, this trial's focus on the Sherman Anti-Trust laws is all fine and well. But the real issues that keep getting mentioned are those addictive ones. Has Microsoft made withdrawl just too dangerous for anyone to contemplate?

      If the answer is yes, then the Government damn well better "interfere". A Government exists to prevent dictatorial power-blocs from forming, where that dictator has created conditions such that refusing to be dictated to carries a penalty sufficiently high that your average person will comply.

      I dislike the "libertarian" notion of removing "Big Government", alone. It creates a power vaccuum. Such a vaccuum created the monstrosity we know as Microsoft. Power vaccuums are BAD. Even if the power that was in them was "bad", the space left behind when that power is gone is MUCH worse.

      TRUE Libertarianism would have to include limiting ALL entities, not just the Government. Otherwise, you replace an elected evil that has legal limits with an unelected one that has no limits at all.

      I don't want to live in William Gibson's Neuromancer nightmare, or the sickness of Max Headroom. You might, and that's your choice, but frankly the thought of corporations becoming the latter-day Feudal Lords and Barrons is terrifying to me. You really, truly don't want to back-slide into a Feudal society. You just don't. If you aren't sure why, look through some English history books, some time. Specifically, look up events such as "The Peasents Revolt", the massacres perpetrated by King William and King Rufus, the endless horrors of the Tower of London, and the numerous regional wars (such as the Wars of the Roses).

      If companies such as AOL and Microsoft are not subject to law, what's to stop them from buying up a bunch of mobile rocket launchers, and wiping out all who oppose them?

      Am I going too far? Maybe not. In the end, what is the difference between destroying a competitor through intimidation, deceit, and industrial espionage, or destroying them with a short-range ballistic missile? The missile would probably work out cheaper, have a much higher chance of success over a shorter time-span, and be much more influential in how other companies act in future.

      If the corporate wars have no bounds, then sooner or later, it's going to expand beyond mere price wars, verbal threats and forged video tapes.

      • That's happened, you know. In the early part of the century, mining corporations hired private security forces and armed them with weapons as heavy as Thompson machine guns. Montana has been a 'company state' at some times (dunno the current situation on that).

        Another good question is how much scope the corporations have to _act_ as police themselves: for instance, unexpectedly raiding companies and looking for pirated (sic) software (gee, who is acting more like a pirate there?) and, if any is found, turning the victims over to the 'real' police. If the raiders get the capacity to cuff the victims themselves, they _are_ police to all extents and purposes, just a sort of 'feudal' police with their own agendas.

      • >However, 99.9% of the human population uses the
        >x86 architecture, in a desktop-type mode.

        You are incorrect. You couldn't even say that
        99.9% of the human popluation is familiar with the concept of refrigeration, or has seen a telephone. 99.9% of the human population would
        not even be able to parse the meaning of the Roman/Arabic characters "X86".

        They might, on the other hand, recognize Mickey Mouse, and might be able to associate the colors
        red, white and blue with a particular idiom: Hilfiger.

      • The server market is just not significant. Very few people run their own servers...

        Damn dude, where's all that code red stuff coming from then??

        Also, since Apple controls at least 7% market share, you can't say that 99% of everyone runs x86. You can't. Besides that you make some interesting points, but... missiles? Missiles? BILL GATES IS GOING TO BLOW UP APPLE! OF COURSE! Come on, man!

    • Imagine this: Some random large company suddenly finds that they have 100x the cash on hand of any of any company that makes profitable product 'X', which is almost completely unrelated to their original core business. Product 'X' has great promise in the marketspace, so thinking long term they decide to blow all that extra cash to make a virtualy identacal product 'X'. Not only do they give their product 'X' away for 'free', they force everyone to have one by gluing it to the side of their already succesfult product that everyone *needs* to buy, so that it is completely pointless to purchase a product 'X' from anyone else. The other product 'X' companies' demise is guaranteed. Sure, this might seem harmless, and you might think it should be perfectly legal, hell they have the money they should be able to spend it how they want, right? What if you later found out that their motives were to put all the other companies that make product 'X' out of business so that they could then vastly overcharge you for product 'X' once you have nowhere else to go. They could then more then double that original cash pile, and then find some other lucrative product, glue that on too, and start the cycle over again.

      This can't be allowed for many reasons. First the consumers of product 'X' are harmed. They loose choice, and demand no longer has any effect on price. Also there is no incentive to improve or maintain the quality of product 'X'. Marketplace innovation is stifled. Secondly, there is no incentive for new companies to go into business to create other new innovative products if there is any chance that this random large company could glue an identical product onto theirs. Innovation is further stifled, the business marketplace and economy suffers, and the consumer gets fewer new innovative products. It's unfortunate that something so subjective like fairness has to be enforced, but to some extent the system has to enforce fairness as a form of self preservation. Plus it's the freedom of individuals that matters, not the freedom of companies, right? You need to enforce a level of "fairness" on competition between companies to guarantee the freedoms of individuals.
    • It's not the gov'ts job to interfere." Which is true.

      No, it's not. The government has the responsibility to regulate interstate commerce. In addition, Microsoft, as a corporation, is the creation of the government. Its very existence is due to law, and the power the government has to regulate commercial matters. You can argue that the Sherman act is unconstitutionally vague (and I'll agree with you there), but it isn't possible to argue with a straight face that the government has no right to regulate Microsoft, or to pass and enforce antitrust law.

      In the findings of fact, it says that MS has a monopoly on desktop-level operating systems for the x86 architecture. So freaking what? They dont have any influence anymore on powerpc. or spark. or whatever.

      Sorry to break it to you, but those platforms are mostly targeted at entirely different roles than the x86. They're just a different market. Even if you include MacOS, Microsoft has more than enough market power to qualify as a monopoly. For the millionth time: 100% market share is not necessary to be a monopoly.

      They dominate one, limiting aspect of the computing industry.

      Desktop OS's. Web browsers. Office suites. Development tools. Would you like me to go on?

      They monopolize a hell of a lot more than one area. And I assume you meant limited, given that it's the OS monopoly that's allowed the others.

      To be a monopoly, they've got to have such extensive control that other distributors are effectively cut off from supplying a competing product. Well guess what? ANYONE is free to write a desktop os for x86.

      Sure, they're free to. They're also free to watch it tank, since no one can compete with Microsoft's MONOPOLY. How many significantly superior products have utterly failed to compete with Microsoft due to the power and cash the OS monopoly has given them? OEM lockins. Infinite cash flow allowing them to keep incrementally improving substandard software that would have been long sincecancelled by any other company. Leaning on the trade press. The fact that no other OS has enough volume to make it profitable to sell applications for it. All of these are barriers to entry erected by Microsoft's MONOPOLY status. No matter how superior an OS, a browser, an office suite is, it will never gain more than niche status on the desktop. And the number of markets dominated or destroyed by Microsoft will only increase. You don't have to be prevented from supplying a product, you have to be prevented from watching your product succeed. Much like the current conditions of the desktop OS market, hmmm?

      Finally, the extremely Microsoft-friendly appeals court ruled that Microsoft has a monopoly. They have a monopoly. Deal with it.
    • But consider what it would take for you to move from a MS operating system to a competitor...
      • You've paid $$$ for lots of MS-only software: will it all run?
      • If not, how will you read/edit all your existing files?

      Since the cost of conversion from one OS to another - in time and money - is prohibitively high for most users, you have the same effect as if the cost of the raw materials were locked up: new entries into the market cannot compete on merit alone.

      BTW, note that it's not against the Sherman Anti-Trust Act to be a monopoly... you just can't use a monopoly in business domain A to create a new one in business domain B. This practice is what MS was found guilty of.

      • But consider what it would take for you to move from a MS operating system to a competitor...
        * You've paid $$$ for lots of MS-only software: will it all run?

        Which was a choice we all made (remember, MAC's used to have more software availble for them then PC's).

        * If not, how will you read/edit all your existing files?

        What existing files? My XML or HTML files? My .txt files? My eudora email files? My PSD/GIF/JPG/PNG files? I've been using MS OS's for 12 years and I could move all of my files over to a MAC and potentially Linux with no problem at all. It's the consumer's choice to use proprietary file formats (read: vendor lock-in), not Microsoft's.
        • It's the consumer's choice to use proprietary file formats (read: vendor lock-in), not Microsoft's.

          This is not explicitly true. While the clueless computer newbies perpetuate the proprietary file formats explosion by typing every 3 line memo/note in Word. It is the choice by MicroShaft et. al. to make these proprietary formats that causes the problem in the first place.

          Question: Why didn't Microsoft propose an open standard for documents and put it in the public domain? Note I'm not talking about the source code just the document format.

          Why? because it is not in their business interests to do so.

          consumer's choice like hell.

  • by gavlil ( 255585 ) on Friday August 17, 2001 @11:12AM (#2135497) Homepage
    lawyers or r&d ???
  • by MobyDisk ( 75490 ) on Friday August 17, 2001 @01:01PM (#2135586) Homepage
    Many Slashdotters seem to have missed the point of what this case was about. This case isn't about Microsoft Office, or Microsoft just being too big, or Microsoft not innovating, or their products sucking...

    This is about bundling. Windows XP bundles replacements the top software of the past year, in an attempt to kill it. CD burners, audio players w/ plug-ins, audio/video codecs, web browsers. This is why they have monopoly power. See where realaudio, winamp, EZ CD Creator, DIVX, Netscape/Mozilla are in 3 years when everybody has XP. Why bother to buy/download those products?

    Splitting MS into Office & Windows doesn't resolve it. The their apps, tools, utilities, and development software must be split apart.
  • Microsoft will find a way to delay this until the end of the world.
  • by sethg ( 15187 ) on Friday August 17, 2001 @11:24AM (#2140236) Homepage
    Upon consideration of the motion to stay the mandate, the response thereto, and the reply, it is

    ORDERED that the motion be denied. In order to obtain a stay of the mandate pending its petition for certiorari, Microsoft must show that the "petition would present a substantial question and that there is good cause for a stay." See Fed. R. App. P. 41(d)(2)(A); see also D.C. Cir. Rule 41(a)(2) (movant for stay of mandate must provide "facts showing good cause for the relief sought"). For the reasons stated in the appellees' response to the motion for stay, it appears that Microsoft has misconstrued our opinion, particularly with respect to what would have been required to justify vacating the district court's findings of fact and conclusions of law as a remedy for the violation of 28 U.S.C. 455(a). We need not decide, however, whether Microsoft's objections constitute a "substantial question" likely to lead to Supreme Court review, because Microsoft has failed to demonstrate any substantial harm that would result from the reactivation of proceedings in the district court during the limited pendency of the certiorari petition. See Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974); Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).

    The Clerk is directed to issue the mandate seven days from the date of this order. See Fed. R. App. P. 41(b).

    (PDF here [].)

  • Hopefully... (Score:3, Interesting)

    by ackthpt ( 218170 ) on Friday August 17, 2001 @11:12AM (#2140362) Homepage Journal
    Hopefully the DoJ will not waste a lot of time on the penalty phase. While I agree that a breakup is necessary, I felt Jackson's split was hardly a solution. What, IMHO, I'd like to see:

    Split off the Office software company

    Share O/S source amoung no less than two new companies (Competition should make Windows _way_ better! Look what it does for Linux distros ;-)

    Split MSN/NBC into a seperate company

    Allow Gates to hold controlling intrest in no more than one of these companies for a period of 2 years.

    That oughta do it. Did I leave anything out? IMHO each of these pieces would be immensely strong and profitable short term, how they fare among the rise of the competition they've cheated nearly to death (Word Perfect, Lotus, Netscape, Novell, etc.) should provide great products.

    • Allow Gates to hold controlling intrest in no more than one of these companies for a period of 2 years. That oughta do it. Did I leave anything out?


      Ballmer, Alchin, Mundie, and no doubt others are every bit as evil, and exert even more control over Microsoft's illegal activities.

      The problem is, if Bill can only hold one of the baby-Microsofts, then the others might behave legally and play nice.

      But if you put one each of the above named evil directors in control of each baby-Microsoft, then competition will be ensured. Each MS will then compete with the others to see who can top the other's acts of evil, spite, greed, control, extortion, control, etc. Additionally, we as consumers would enjoy the advantages of the baby Microsofts being able to act in concert with each other because of the old-boy network of the guys in charge of each piece.
      • Re:Hopefully... (Score:2, Informative)

        by ackthpt ( 218170 )
        Gates has been the driving force, make no mistake there. Ballmer, Alchin, Mundie, et al may be a pack of devious little weasels, like this guy [], but Gates still steers the company. If you get a chance to hear him speak, take it, he's a wonderful speaker and has even gained some charisma, but weigh the what he says and read between the lines. He likes what he's doing and means to keep doing it and liking it. When he doesn't like it, there has been instances of him throwing temper tantrums.
    • Re:Hopefully... (Score:3, Interesting)

      by Syberghost ( 10557 )
      The best solution the problem of Microsoft's monopoly is this:

      Rule that the "you can't sue us" clause in their licenses is null and void.

      That's it; no other intervention is necessary from the government.
    • You split microsoft and you have accomphlished nothing they haven't considered doing on their own. You split the OS and only consumers will get hurt. Just what they need, does it work on OSA or OSB? Which ever of the two gets the name Windows will win anyway.

      Office would continue to stomp everyone else into the ground, because its OFFICE. Everyone would know its "really Ms"

      MSN/NBC is not a threat to anyone except to those who hate MS for no logical reasons.

      Bill Gates isn't the threat either, but a small mind works wonders when it can focus on ONE PERSON to blame.

      Sorry, but they won't give rise to competition. Netscape died because its buggy and could not even follow stanadards. WordPerfect, sorry guys, it deserved death. Novell, for the same thing people bitch as Ms for - you could not run on Novell without their certification.

      So get real, I'll lose karma over this, but I really don't care. How in the hell this original stupid post made it to a 4 is beyond me. It offers nothing but the standard "Stoke the Linux faithful" by feeding them the bs you expect a politician to feed welfare slaves.

      Instead of smartassed no-thought solutions why not come up with something effective. Ms got this way because of their marketing, it must be curtailed in the future on pcs, networks, and the internet to prevent them from doing so again. Office and Windows were merely what was being marketed.

      1. Make it illegal for them to require their product placement over that of others on the desktop. Only operating system required icons can be required, and for windows that usually means system and trashcan. However any thing added to the desktop by a vendor should clearly state it is not supported by MS. I would also go as far to say they should have the right to have the name Windows and their Microsoft logo displayed on ANY startup screen.

      2. Place no restriction or penalty on the cost of windows for companies that sell computers with other operating systems.

      3. Create and monitor window wholesale costs so that it is sold to resellers of similar volume at the same price. This should not be public information, but monitored by an independant board appointed by the court.

      4. Require that any software installed by a competitor be allowed to become the first choice for operating on the media (I think this already occurs)

      5. Allow for removal of non-required components via the Windows Software Add/Remove. This means you can one click access away for IE, WMedia, or anything else.

      6. Require Microsoft to show a good-faith effort in correcting incompatibilities caused by a software update on their part with a competitors product. Perhaps have an outside board judge the effort.

      In the case of the solutions provided above, the court would appoint or see to the appointment of any monitoring agency. Microsoft would be required to pain a reasonable fee to maintain funding of this board for the duration the court sets forth.

      Those are better solutions, do not take solutions which only serve to help those who have lots of Ms stock (any split would be amazing to them), and hurt consumers by introducing confusion in the market place.

      Remember, any financial penalty is coming out of John Q. Public's pocket anyway.
      • Just what they need, does it work on OSA or OSB?

        One advantage the UNIX community has is that diversity over the years has forced developers to plan for portability from the ground up. Portability does create more work for the developers, but the software is better for it. It's one of those things that people can look back on and be thankful for as they now can use maintainable and widely useful software.

        If Windows software developers are forced to rethink their designs to keep things working after a split in MS, so be it. It will be tough, undoubtedly, but the benefits will be: less reliance on the Registry, fewer files installed under C:/Windows, less code depending on specific "features" (bugs) in the OS, and on and on.

        Windows really has an in-bred quality to it. The monopoly has allowed really bad software features to survive and become dominant as would occur with genes in an inbred human family. It just isn't in the best intrest of our future (who wants kids with 11 toes and blue skin? Unfortunately, Windows already has 15 toes, goat fur, and two heads!).

  • by Anonymous Coward on Friday August 17, 2001 @11:12AM (#2140363)
    They never had any as far as I'm concerned.
  • So? (Score:4, Insightful)

    by Wind_Walker ( 83965 ) on Friday August 17, 2001 @11:07AM (#2145399) Homepage Journal
    All the delay would have done was postpone the inveitable. As it is, there's going to be a long, drawn-out trial while Microsoft dances its lawyers around and circles the wagons, trying to protect the money that they fought so hard to earn.

    A delay would have put this trial off by what, a couple of weeks? Wonderful. This trial, and mark my words, will last longer than the O.J. debacle. This will be a 3-year long trial, while Microsoft calls in experts, and the DoJ calls in rebuttal experts, on and on ad absurdium.

    We're never going to see a just resolution to this, so what does it matter if they aren't delayed a few weeks?

    • ...and...

      "A delay would have put this trial off by what, a couple of weeks? Wonderful. This trial, and mark my words, will last longer than the O.J. debacle. This will be a 3-year long trial, while Microsoft calls in experts, and the DoJ calls in rebuttal experts, on and on ad absurdium." say that like it's a bad thing! After all it'll keep slashdot supplied with stories :-)
    • Re:So? (Score:4, Funny)

      by ReelOddeeo ( 115880 ) on Friday August 17, 2001 @11:25AM (#2134244)
      A delay would have put this trial off by what, a couple of weeks?

      Maybe longer. But the important point is that they are trying to put it off in order to prevent justice. If they can get XP into the market place before a new remedy is pronounced, it gives them a big advantage.

      This will be a 3-year long trial, while Microsoft calls in experts

      This is what Microsoft wants, not what is good. It is good that the court isn't going to let MS stall this out forever.

      Microsoft...., trying to protect the money that they fought so hard to earn

      trying to protect the money they fought so hard to extort from us. Everyone is so happy to pay higher prices for lower quality.

      We're never going to see a just resolution to this

      Sure we could. Nuke the MS campus.

      so what does it matter if they aren't delayed a few weeks?

      Because MS might be able to rush XP out the door to further remove competition and prevent innovation.

      Our father who art in Redmond,
      Microsoft be thy name.
      Thy monopoly come, thy chokehold be complete,
      throughout the earth as it is in the US.

      Give us this day, our daily license renewal.
      And forgive us our bug reports,
      as we forgive our system crashes.
      And lead us not into competition,
      but deliver us from innovation.

      For thine is the control, and the power,
      and the greed forever.
    • A delay would have put this trial off by what, a couple of weeks?
      1. [Gates, petting furless cat] Or, shall we say, one billllion dollars! [bites pinky]

    • Re:So? (Score:2, Insightful)

      by jmauro ( 32523 )
      Except they are not allowed a new trial. The trial stands, without any changes or new evidence. They have been found guilty. The Conclusions of law needs to be reworked. Basicly the sentancing phase will be redone, which should take 6 months tops. It's really not that hard at all.
    • by ackthpt ( 218170 ) on Friday August 17, 2001 @11:16AM (#2160419) Homepage Journal
      will last longer than the O.J. debacle.

      But in this case, the glove not only fits, but it comes bundled with the bloody knife and bodies.

  • by Darth RadaR ( 221648 ) on Friday August 17, 2001 @11:31AM (#2154898) Journal
    "Some trial watchers have characterized Microsoft's recent legal moves as part of a broader strategy to prolong the court proceedings and delay any antitrust actions, including a court-ordered block of the release of Windows XP, until after the product already is in the marketplace."

    Kinda makes it sound like XP is some sort of evil master plan instead of some grand improvement on Windows.

    I can picture it now (swirly effect)

    Steve: Master Bill, the Justice dept. is coming to attack us for our evil marketing practices and thwart our release of XP.

    Bill: Call my Flying Lawyer Monkeys. (speaks to head lawyer monkey)This Justice department *must* be stopped. Take your Flying Lawyer Monkeys and hold them off until Oct 25 (Dec 21:). If we can't get an appeal, then make sure we can get a delay. Because after Oct 25, XP will be released and our power solidified. Then the world will be powerless against us.

    Fly, my little Flying Lawyer Monkeys, fly!

  • Personally, I've never found windows' constant delays to be very appealing.
  • by Everyman ( 197621 ) on Friday August 17, 2001 @02:23PM (#2155313) Homepage
    Am I the only one on earth who thinks that Judge Thomas Penfield Jackson knew what he was doing when he talked to the press?

    Fact one: Jackson split off his statement of facts from his statement of law. The statement of facts was very competent and comprehensive.

    Fact two: He didn't start talking to the press until after the statement of facts had been filed.

    Fact three: This case is huge; it's the biggest anti-trust case in 100 years. There is an enormous amount of money behind Microsoft. Jackson knew that there was zero possibility that the case would be a slam-dunk on appeal. The higher courts have to answer to that much money to some extent; it's impossible to ignore it in a capitalist culture, particularly when soft money elects (read: appoints) Congress and the President.

    BE IT RESOLVED, that Jackson had to throw a bone to Microsoft. He gives something for Microsoft to chew on, and he gives the higher courts a way to appear that they are carefully considering the legitimate interests of Capital.

    So Jackson threw a fake drug-store doggie bone to Microsoft by talking to the press. They chewed happily on it for a year, virtually ignoring the hefty record of facts that had been compiled at the trial. The issue of Jackson's prejudice was highlighted by Microsoft in their appeal, setting the stage for the Circuit to unanimously affirm almost all of the important facts, while slapping down Judge Jackson.

    All the media bite down on the same fake doggie bone. Microsoft thinks they won, because the appellate decision was superficially ambivalent so that the media don't bother reading the record. Meanwhile, the important facts are upheld unanimously, and it seems unlikely at this point that the Supremes will even hear the case.

    Here we are, 15 months after Judge Jackson's structural remedy. The remedy is thrown out, but the case was so big that something had to be thrown out in any event. Jackson's victory is that he got the least significant decision he made thrown out, by carefully orchestrating the appearance of prejudice according to a precise time table.

    Here we are, 15 months later, and Microsoft has run out of delaying tactics. A new judge will be appointed who is required to do something major, because the facts have been affirmed unanimously and are not within his purview to challenge. He has merely to appear fair-minded, and his decision with respect to remedies will stick.

    Stick that in your ear, Microsoft.

  • by weave ( 48069 ) on Friday August 17, 2001 @12:55PM (#2155371) Journal
    They have the perfect damn weapon. I say this everytime this topic comes up.


    The federal government should just move to a different competitor. I read that all fed agencies shovel over a billion a year at Microsoft in various license fees. Imagine how much a billion a year would help another software company become a viable competitor to Microsoft.

    They don't need the courts, use the damn marketplace...

    • That would be a solution, if it was workable. However it is not.

      A) All federal agencies make their decisions seperately. The justice department can't make the decision for the other departments.

      B) All have programs and procedures for Microsoft Products that lock them in.

      C) No clear competitor exists to replace all government programs.

      D) Even if successful, this won't affect Microsoft's dominance in home PCs, where you can't even buy a mainstream computer without MS software bundled (even Apple has some bundled!). Let alone convince people against it.

      It's like asking the government to fund a competitor to Bell Telephone when they owned vitually all the phones in the US. Not workable.

      • Blockquoth the poster:
        It's like asking the government to fund a competitor to Bell Telephone when they owned vitually all the phones in the US. Not workable.
        Except, of course, the government did. You're using it to send email, transfer files, or even read slashdot.

        Of course it took a long time, and no one expected it quite to work that way, and it's not quite there yet...

  • I think that if there was an injunction against the release of XP antil the settlement is reached that Microsoft would do their damndest to try to come to some sort of resolution. Otherwise, this thing will just drag on forever.
  • by kitmarlowe ( 136925 ) on Friday August 17, 2001 @11:35AM (#2155745)
    Instead of separating MS into an OS division and a software division, which just creates two monopolies, why doesn't the DOJ just break them into three identical companies. Each company will hold the same IP rights and can sell and market anything currently being done by MS. Make three companies all selling the same thing and you really will help consumers by forcing giants to compete with each other, thereby driving prices down and reliability up.

    Of course, then there would be 3 MS's to hate.

    • by Software ( 179033 ) on Friday August 17, 2001 @11:59AM (#2128051) Homepage Journal
      Excellent idea. I say we call them Micros~1, Micros~2, and Micros~3.
    • Instead of separating MS into an OS division and a software division, which just creates two monopolies, why doesn't the DOJ just break them into three identical companies.

      Because the key problem is the fact that to foster "innovation", Microsoft claims that it's vitally important that they be able to bundle any application into their operating system, especially applications that compete with other companies' apps (who don't have the advantage of being able to get their apps on the desktops of all PC's in the universe, virtually for free, bundled with the OS).

      By splitting it into three identical companies and giving them the same code base, you'll have three companies doing this, and not one. So the old Micros~1 had all the PC's in the universe, but the new Micros~[123] each has 1/3 pc the PCs in the universe. It's still a barrier to competition if you aren't a Microsoft.

      And who says the user base gets divided into thirds, anyway? What if Microsoft puts the best third of their developers and marketing people in Micros~2? Within five years, most of the user base will gravitate toward that one, and we have the same problem.

      Separating the OS development group from the Apps group, and putting strict rules on how the OS group can partner with Apps developers (perhaps even forcing MS to spin off the OS development into a not-for-profit research corporation or a consortium funded by the Apps Writers, but I'm not sure how comfortable I am with that idea) is the only way to insure that all MS Apps development is done on a level playing field.

    • ...MS "shared source". Would they have to agree about who could look at their trash? Suppose one of the companies decided that the furture of living in the boxed binary past was dim? Kinda makes Itelectual "Property" look like the bull it is.

      That their greedy and paradoid view of software should be thought of as normal is a demonstration of the power of adverts. Really, how many other proffesionals are so concerened about others profiting from their work that they would deliberatly reduce the quality of their products? Pitty the poor VB serf who thinks of it as a career.

    • Microsoft should be split into 3.14159... pieces. So that everyone can have a piece of the PI.

  • This won't delay XP (Score:2, Informative)

    by dodson ( 248550 )
    OEM's already are working on their early August copies of XP and will have systems shipping a month before the official October launch date.

    I don't see how the legal system can move fast enough to stop something already in motion.

    Microsoft delayed things long enough and have focused on the prerelease while everyone else is concerned with the October ship date.

    What are they going to do remove the OS from pc's after the fact. Not likely.

    It would seem they have been smarter than the rest of us again.
    • by RelliK ( 4466 )

      The DoJ will ask the district court to issue a preliminary injunction against XP. That is, the injunction to be issued *before* the trial actually begins. The judge will do it if 1) he has strong reason to believe that he will arrive to the same conclusion after the trial and 2) DoJ can demonstrate irreparable harm if injunction is delayed. In this case, it's easy: 1) MS continues to use exact same monopolistic practices they were sued for, and 2) if injunction is not issued immediately, XP will be released and it will be too late. So yeah, DoJ has a good chance of stopping XP release.
  • by 4n0nym0u$ C0w4rd ( 471100 ) on Friday August 17, 2001 @11:53AM (#2159799)
    don't hold your breath. Our legal system is unbelievably slow and unwieldy, getting an injunction issued before October 25th is not going to happen no matter how anti-competitive Windows XP is. If there is an injunction issued in time, Microsoft will ask for a temporary lift on that injunction so that it can appeal it and the lift will be approved, leaving them free to begin shipping XP which will make any further attempts to stop XPs anti-competive features moot.

    Yes, eventually Microsoft will lose several cases and exhaust all appeals, but I firmly believe that by the time the first case is finally over I (17 year old high school Senior) will be out of college and possibly even a husband/father. The Open-Source and Free Software community can not sit arround hoping for the courts to "kill" Microsoft. Instead, Microsoft must be "killed" by the production of incredible Free Software that totally blow any proprietory products out of the game. There is no reason why this cannot be done, after all Open-Source projects have the advantage of having MANY more developers than any company can hope for. If more developer put forth a serious effort to better existing projects those projects could easily outshine any proprietory competitors.

    The main problem with most Open-Source software is it is always playing catch-up to proprietory software. Open-Source developers need to design original and innovative features as well as incorporate existing features. A great start would be Linux Only games, but not just any games, incredible FPSs, RPGs, and Racing Games. Trust me on this, make a great word processor and Joe Sixpack won't give a flying fuck, make an advanced and extremely gory FPS thats only available on Linux, and Joe Sixpack will have the newest copy of Redhat (or any other Distro) with 2 hours of the announcement.

    In conclusion, the fall of MS will only be brought about by the development of great, solid, and innovative Free Software (especially in the entertainment areas), not by the courts.
    • Instead, Microsoft must be "killed" by the production of incredible Free Software that totally blow any proprietory products out of the game.

      Reading your message made me start to think about why open-source and/or free software has not made more inroads than it has...

      Star Office is about the best example I can think of at this point. If the os or free commmunity want people to begin using their software it must be baby steps for the end user. Myself, I am comfortable hacking my way through my PC. The rest of the users in my office couldn't do it. Why not focus some attention on software for Windows? I know this sounds like blasphemy, however, if you can get users to get used to the application on Windows then the switch to Linux/something else on the desktop would be significantly easier if the interface was the same for the application. The problem is people are being asked to give up *everything* they already know, OS, Apps, and more to make the change to Linux. If there was a Windows-based office suite for starters (Star Office... maybe?) that could compete with MS Office in terms of usability and compatibility without rocking the boat in terms of interface, I could deploy it to my users and have them accept. Then when it comes time to replace their PC I can consider Linux because they are familiar with the application and we've taken one step already.

  • by Anonymous Coward
    The courts have to get an injunction against XP before they release it otherwise once it's out there people will buy it, there's even a chance that people will rush out to buy it just in case it is pulled by the courts. Therefore the only way this is gonna be effective is to get an injunction now, otherwise it may benefit MS in the long run.

    Another thing that's surprising is that IE6 isn't released yet, rumour was that IE6 was due for a Wednesday release but it's still in beta. Netscape 6.1 [] was released a week before IE6's alleged launch date, and 6.1 is a lot nicer than the joke that was 6.0, it's now some real competition for IE. I don't think it's gonna suddenly give Netscape advantage in the browser wars but it's good to see their competition has not given up.

    So courts, if you want an injunction get it now, otherwise for the good of everyone just don't bother.

    • Aha! You've discovered the plan of our Microsoft Masters! When the great XP is launched, our Judge-O-Trons will begin the process of recalling it, driving thousands of Lusers to CompUSA in hopes of getting a copy of the "dangerous and highly illegal" XP! It'll be more popular than Napster!

  • Another link (Score:3, Interesting)

    by cybaea ( 79975 ) <allane.cybaea@com> on Friday August 17, 2001 @11:09AM (#2162702) Homepage Journal

    Here [] it says

    The appeals court said Microsoft had ``misconstrued'' part of its June 28 opinion and ``failed to demonstrate any substantial harm that would result from the reactivation of proceedings in the district court during the limited pendency of the (Supreme Court appeal).''

    Not a lot more info. Are the court rulings public documents?

  • I tend to doubt that the Supreme Court would take it, delayed or not.

    Its not a novel issue of law, circuits are not split on the issues involved, and its not a important constitutional question.

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