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Microsoft To Go Straight to the Supreme Court? 499

Seth Scali writes "It appears that Microsoft's appeals might not take as long as everybody thought. According to an article in the New York Law Journal, it seems that an obscure federal law, called the Anti-Trust Expediting Act, could allow the DoJ to skip the regular appeals process and take it straight to the Supreme Court. Since the judges in the federal appeals court were sympathetic to Microsoft last June, there's a very real possibility that the DoJ would make use of the law. "
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Microsoft To Go Straight to the Supreme Court?

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  • How much MS stock do you own?
  • If Bush wins, he is sure to make quite a few appointments (just like every other new administration). These appointments usually include the top prosecutors at the DOJ as well.

    Of course it helps to have Bob Helbolt (sp?), MS Chief Operating Officer, who is a good friend of Bush, tons of money to spend on congressional races and a top lobbying firm looking out for their interests.

    I have been working on the Hill for quite some time now and let me tell you this: you wouldn't believe the lobbying effort put on for MS. Just a few years ago, when MS didn't have any legal problems, there was hardly any mention of MS and MS, for its size, had nearly nonexistent representation.
  • "Large market share?" Try absolute share. Obtained through methods such as bullying OEM's, writing contracts that said 'Bundle Win9x or ELSE', and wiping competition out with this 'large' market share. I'm sorry, but how can you claim that to be legitimate? Through OEM's MS established an OS monopoly and through that OS monopoly, MS removed any competition, be it better or worse. MS did not win by their merits or 'innovation', they won because they ran the competition out of the market. That is ILLEGAL.

    Your point most certainly does NOT stand. What if a critical piece of software is NOT avaiable for the Mac? There is a LOT more software for Win32 then for MacOS. And part of the argument made in the FoF is that developers are reluctant to develop for other sectors of the market because MS could come after you, or because the other markets aren't as lucrative. This leads back to the original point of the OS monopoly. Once that monopoly stands, noone will write software for other platforms because it's not profitable. Self fufulling monopoly.

    The Judge said FAR more then the forced IE issue. Read the FoF for petes sake! Read on the OEM bullying, EVERYTHING. You're only showing your own ignorance by claiming all the Judge talked about was IE.

    The harm to consumers comes from their lack of choice. When there is no choice, you're no longer a consumer using purchasing power. If you can't put your support (money) behind competition because there IS none, then you can't be called a consumer anymore.

  • "If Netscape don't fit, you must acquit!"

    rickf@transpect.SPAM-B-GONE.net (remove the SPAM-B-GONE bit)
  • Who here do think that Microsoft will rule the world forever? Anyone thinks it will rule for the next 20 years? 10 years? 5 years? I don't think so. Microsoft's happy days are soon to be over.

    The world is changing but Microsoft isn't changing fast enough. The question whether Microsoft has a monopoly over PC operating systems (which it does, at the moment) will be irrelevant in few years. There are so many exciting things happening that will undermine Microsoft's powers. Internet enabled mobile phones, set top boxes, Internet everywhere, and all that stuff. But the primary reasons Microsoft will someday fail are two: It's greed and it's employee greed.

    First, how much does it cost for PC companies like Compaq or Dell to purchase Windows for each PC they sell? I think each copy costs at least $50, probably $70, and NT/2K even more. Now, how are companies going to be able to sell PC's for $700 or $500 or $300 with an OS that costs 50 bucks? Today already, Windows costs more than the main processor in many of those cheap computers, and I bet Microsoft makes more money on all those $500 PC's than the manufacturers themselves. Second, as we have seen in the past, Microsoft has the bad habit of taking over their "partners" business or betraying them in other ways as Microsoft has often done (keyword: Citrix). Other companies have noticed this behaviour and WILL continue to do so, so they try to avoid Microsoft whenever possible (the smart one at least). Remember for example how reluctant TCI John Malone was to accept Windows CE on his company set top boxes. Microsoft even had to bribe AT&T, TCI new owner, 5 billion dollars to insure it would use Windows. How many times will Microsoft be able to do that? It may have a lot of money but their chest isn't endless. I also think it's certain that somewhere within the PC industry, thousands of people are trying to find a way to avoid the MS Tax by using other, cheaper OS's, be it Linux or BeOS or maybe even something totally new.

    Finally, how much is Microsoft worth these days? Last time I checked it was somewhere hovering around 500 billions. How much will it be able to grow? Perhaps it will be worth one trillion or two sometime in the future, but one day the valuation of Microsoft will stop growing 20-30% each year. An when that day will come what do you think all those low paid - stock option rich - Microserfs will do? Either they'll flee the ship or demand a raise. And when all those tens of thousands of MS employee will get their raise, the profits of Microsoft will certainly take a huge plunge. And with it, the stock price and again the Microserfs will demand a raise or leave and the stock price will fall even more etc.

    Well, this is what I think, perhaps I'm to optimistic :)

  • Well, generally settling a case is done to save the time and expense of a trial. I don't see that it's "blackmail" (unless I misunderstand your use of that word) to offer a break, or to take a break, in penalty in return for saving everyone the trouble of court.

    The vast, VAST majority of legal suits in this country never go to court, and are settled out of court because both sides (whether private individuals or government entities) recognize the finite assets anyone has to fight with (and I don't just mean money here, time is also a finite asset, as well as people).

    This isn't blackmail, it's common sense -- "we all know the evidence will convict him, so we'll settle for a lesser punishment and we'll save taxpayers the time and effort of prosecuting".

    Personally I doubt the DOJ would approve a settlement that didn't have significant teeth (they learned their lesson from the consent decree -- that's why they stopped fighting it and came back with a full-press antitrust suit).

    I'd prefer to see it go all the way to the end, that way you're guaranteed that the findings of fact are entered in the record. It doen't even matter what the penalty is -- the real penalty will be that Caldera and everyone else MS has screwed can use the FOF against them in their own suits. Once labeled a monopoly as legal fact, MS will find buying companies and ripping off technologies a lot trickier.
  • Baloney. This is a very standard price for a large software package for Windows. Is Apple a monopoly too?

    I think I bought Mandrake for half of that. What are you talking about ?

    Consumers can download Netscape in a matter of minutes.

    Mr. and Ms. Average Joe will not download another browser when there is already one in their system. As a matter of fact, with the "shell" integration, they might not even know what an internet browser is, even if they're using one !!!
    BTW - Downloading the latest Netscape over a modem (again, Mr. and Ms. Average and most people in the world) does not take a couple of minutes. The issue becomes even worse, in non-US countries, where you are charged by the minute of usage.

    I haven't used Windoze much, but the few times I used it Netscape seemed to work just fine. At no point was I "forced" to use IE.

    Well, maybe you should play with the latest Windows versions and familiarize yourself with the new paradim. When you get a new computer, you have to make a very consious effort to use Netscape, since everything is IE. Even setting up your dial-up networking and getting the latest windows updates/registering is done by IE at initial bootup (the first time). Oh, I forgot. And people are forced to use IE to browse through files and folders. So when IE crashes my explorer shell freezes and I have to restarted by run Task explorer.exe. Intuitive ! I can see average users know how to do this with their eyes closed :)

    As I understand it, this practice has already been curtailed, and it is arguably a net harm to consumers over giving Windows indiscriminately to all comers. But isn't this within Microsoft's rights?

    No, it's not under MS rights to revoke licenses in order to limit consumer choice. That's the whole point of the FoF !!!! How does is this attitude compliant with the hypocritical "Freedom to Inovate" concept Mr. Gates keeps spouting about ???
  • NAFTA does not currently apply to Grand Cayman Island.

    NAFTA currently applies only to the US (and Territories of the US), Canada (and Territories of Canada) and Mexico.

    Chile has applied for membership but nothing has happened on that yet.
  • In the libertarian-ayn-rand-dog-eat-dog-jungle, there is no morality.

    Offtopic, perhaps, but you oviously don't know much about the philosophy of Objectivism or the philosophical grounds of libertarianism. They are highly moral constructions, which find stealing and lying to be repugnant. Certain elements of the case against MS (e.g. the corruption of Java) could therefore be supported under a libertarian legal system.
  • I think that Microsoft would be interested in dragging out the case as long as possible. Why? The longer a case drags out, the more money it costs. If a case is drug out long enough, someone is going to run out of money and will be forced to drop the case. And Microsoft certainly isn't going to run out of money first.

    Remember, the organization figting microsoft here is the Department of Justice, not some other bankrupt company. The US government rakes in 3 times microsofts entire market cap each year, and if they really need to, they could just rase taxes. I don't think it's costing them that much money though...
    "Subtle mind control? Why do all these HTML buttons say 'Submit' ?"
  • Microsoft lies again and again to judges throughout America but you think it would be immoral for them to settle?

    Not necessarily immoral. If settling would reduce the penalties they suffer, I wouldn't hold it against them. But I would rather see them fight it out, because if they settle they implicitly accept the false conclusions of Judge Jackson.
  • Ayn Rand was a fruitcake.

    Her philosophy might give lip service (Monica?) to being moral, and lying and stealing being bad, but there aren't any compunctions against the big guy blacklisting the little guy until he has to work for slave wages or starve.

    Her rules are all against the little guy, because the big guy can apply pressure from many sides to get what he wants.

    If you like Ayn Rand's words, you need to grow up.

  • Whatever happens, Microsoft is an integral (if annoying) part of our economy. The wanton destruction of such a huge company would only hurt us.

    This leave MS in a nice position, really. We can slap them about, but we (as a country) are so dependent on them, that destroying them would hurt the economy.

    This is incorrect. The destruction of Microsoft would help the economy. The economy is not helped by people doing busywork that has no product, like rebooting BSOD'ed boxes. I know people whose full time job is to simply counteract Microsoft defects. This is waste. Waste is bad economy. Having people do busywork doesn't help the GNP, it hurts it.

    Yes, these people would need new jobs if mainstream software suddenly started working reliably. But that's not a bad thing -- they might end up in jobs where they actually serve a productive purpose.

    And, in addition to the completely artifical (wasteful) support industry that Microsoft has created, look at the devastation in the software industry. Have you ever noticed that web browsers stopped getting better ever since the Netscape/Microsoft wars? You can't make money on a web browser anymore, thanks to what MS has done, and that's why hardly anyone is working on improving them, except outside of the mainstream. The same goes for word processors, spreadsheets, etc. Microsoft has virtually halted the state of the art, and programmers that could be improving things are instead drawing paychecks by installing Service Packs.

    Think about overall production, and then try to honestly say that Microsoft is good for the economy. You can't.

    Now, that said, I don't think the government has the right to wantonly destroy a company simple because it will help the economy. That's totalitarianism. But I do think they should apply the Law. Fine Microsoft, hand out indictments to those Microsoft employees who are responsible for Microsoft's illegal actions, and happy hand over all the accumulated evidence to the plaintiffs in the coming wave of civil suits against Microsoft.

    We don't need the DoJ to destroy Microsoft. Microsoft's civil liabilities alone will be enough to push their stock down to $0, and still leave a lot of unhappy creditors standing around. But that's better than the creditors getting nothing, which is probably what would have happened if the DoJ and Caldera cases hadn't started digging up such a prodigious pile of incriminating evidence.

  • > I think that Microsoft would be interested in dragging out the case as long as possible.

    Perhaps. But remember that it has been scalding PR for them so far, and if dragging it out means having their behavior discussed negatively in the media, then dragging it out is going to do a lot of collateral damage, so dragging it out will be a trade-off decision for MS.

    I think the changes that have been brewing during the last year are the fortuitous conjunction of several independent forces, but the public exposure of MS's internal communications, the media's negative reaction to the Gates video, and the general "police car in the rear-view mirror" effect, have all been contributing factors.

    > I predict that we'll see the mighty PR machines spewing out garbage about how the case should be dropped because it is costing taxpayers "too much money".

    We've already been seeing this for months from various astroturfers.

    It's October 6th. Where's W2K? Over the horizon again, eh?
  • It's just a phase. You'll grow out of it ; )

  • ...and, perhaps more to the point:

    Of all the variables in this equation, the supreme court is by far the slowest-changing. In the time it takes to substantially alter the makeup of the US Supreme court, we could suffer under the yoke of Microsoft's "enhanced" "standards" through several generations of new technology.

    In general, I say don't write off the Supremes on ideological ground. Their ideological predispositions may be conservative, but on average I've seen them make good legal decisions -- and on factual grounds this case is an easy call.

  • If only.

    Heard about cases where landlords were sentenced to live in their own slum housing? In at least one case, the landlord spent the money to make his apartment liveable, whie the rest of the building continued to crumble around him.

    Gates & Ballmer would probably work out a deal with the PHBs at the support company to make their time far more pleasant: second line support (i.e. no calls along the line of ``which one is the backslash key again?"), a cubicle they could actually stand in, permission to have a radio & their own coffeemaker, & guards to protect them from the vengeful Bobs around them, wanting to give them a personalized BSOD.


  • Splitting Microsoft at this point would create one company with a monopoly on operating systems, one company with a monopoly on office suites, and one company with... well, a lot of internet real-estate. That wouldn't be an ideal solution, because they could strike deals with each other, or at least continue what they've been doing. At one point, when this whole thing began, I heard a rumor that they were already setting up "lines of communication" betweent the OS department and Office, in case of a breakup.

    Splitting MS into a bunch of identical companies would probably be ideal in the short term, as they duke it out with lower prices, etc, but in the long term, we'd end up with just one large company all over again.

    Forcing them to release the source to their operating systems is probably the most brutal and unlikely thing that could happen. Open source is a pop phenomenon. There's no proof anywhere that it's a sustainable business idea. Yes, Redhat's doing great, as is Cobalt, and everyone else is lining up to get in on the IPO's, but there's no reason to believe that in the long term, it will be sustainable (not trying to bash anyone here, but opensource has only been in the mainstream for a year or two now).

    My impression is that the penalties will try to level the playing field for the future, and shift the balance of power in the short term, but forcing them to go open-source would be akin to saying: "You got too big, acted to bad, so we're shutting you down." That wouldn't be right, i don't think.

    I'm really in favor of Scott McNealy's opinion.
    1 - Force them to divest their holdings in other companies,
    2 - prevent them from investing in or aquiring other companies for 5 or 10 years, 3
    3 - disallow any restrictive agreements, and
    4 - force them to open up their prices, so everyon pays the same thing with the only discounts avaialable being those strictly based on volume.
    5 - And drop those market development agreements.

    Lastly, fine them a few billion. Not much, because there has to be some left for the rest of the lawsuits that are bound to follow...
  • do not pass go
    do not collect $200
  • Let's just skip the whole supreme court thing and go right to the top.

    Chris DiBona (Punchy tired today)

    Grant Chair, Linux Int.

  • Since it appears likely that Judge Jackson will produce a result favorable to the Justice Department, the issue here is moot. Microsoft would be the one filing for an appeal, not the Justice Department.

    Microsoft has nothing to gain by appealing directly to the Supreme Court. ANY court has a good chance of being more favorable to them than Judge Jackson. By appealing to the Supreme Court, and being heard, Microsoft merely risks losing the final battle. They are in a much better position if they drag this thing out.

    Just my non-lawyer $.02

  • This is exactly MS's best strategy. In fact, by writing "intel" into the *market* portion of the FoF instead of the "barriers to entry" (as in, we already have Intel hardware on every desk in this company, we can't exactly switch to MacOS) Judge Jackson made his greatest mistake.
    (go ahead, mod me down as redundant, so long as you mod him up. Assuming "sethg"=a "him".)
  • Actually, as a side note, RedHat 6.1 does pull up a local jump page when you start up netscape.
  • by Lamont ( 3347 )
    Regardless of where you stand on this issue, I think everyone would agree that it is best for all the parties concerned if the case is brought to a final resolution quickly.

    Of course, there can be no appeals until the Judge is finished. Remember, all that has been issued so far is the FoF.
  • Well, in this particular case, it definitely is. Having a highly profitable corporation in your state means lots of jobs and lots of money for everyone. MS pays state taxes as well as any more political considerations, so MS probably funds a good portion of every kids education.

    It also looks a whole lot better to say 'oh, I think Bill's a great guy and I support him and he supports me' than to take money behind closed doors. Either way you look like a political prostitute, but if you're up front about it, at least you're an -honest- whore, right?

    Keep it in mind if you ever move to the US and run for office. :)

  • You are mostly correct. However, according to the NYLJ:

    "It precludes a party from appealing until a 'final judgment' is issued - in other words, until Judge Jackson has his say not only on the law's application to his findings of fact, but on what remedies should apply to Microsoft's antitrust violations."

    Does this mean that before the Supreme Court issues a writ of certiorari, that Judge Jackson's decision takes effect instantly--without any other judicial review? Despite the fact that I am a firm believer in MS's guilt, this doesn't strike me as due process. And if the Supreme Court refuses to issue a writ, does it get bumped down to the appelate courts before Jackson's decision can take effect? I don't know about you, but I need more information.
  • As I've said elsewhere, this is a common antitrust trick:

    So I suppose you've worked or studied a large number of antitrust cases to come to this conclusion? Your decades of legal study & courtroom experience outweight those of the judge, who has presumably seen such "tricks" before? I suspect that in an adversarial justice system, the attorneys on both side generally use the law to their favor in such "tricks".

    I recall that MS got the "special master" removed from the case early on due to a similar "trick" but it didn't seem to help their case much. regardless of this "antitrust trick", the judge stated quite clearly in the findings of fact that the concusions reached would have been NO DIFFERENT had Apple been considered part of the relevent market. So i really wish folks would stop whining about apple being an alternative -- feel free to edit your version to include Apple in the relevent market and, as the judge stated, It'll have the same acts and conclusions...
  • by Mark F. Komarinski ( 97174 ) on Tuesday November 09, 1999 @10:28AM (#1548077) Homepage
    Well, for one thing, it won't stall in appeals.

    Second, the DoJ could get some setbacks in appeals, since some courts between Judge Jackson and the Supreme Court are sympathetic to MS.

    Third, there won't be anywhere else for MS to go except make a deal now with the DoJ, or take their chances with the Supreme Court, which could be worse than a deal with the DoJ.

  • by rde ( 17364 ) on Tuesday November 09, 1999 @10:29AM (#1548078)
    This one took me totally by surprise; I'd sort of assumed that the FoF was an interim step, and that all decisions for the next ten years were going to be appealed. This would have made the whole series of trials pointless; as MS pointed out, the computer sector moves fast, and by the time the supremes got their hands on the case, it would've been irrelevent.
    Now it looks like we may see a resolution; my bet this means MS will have to settle.
  • I wouldn't assume that this case takes the fast appeal track. IANAL, but my reading of the Expediting Act [gpo.gov] is that three things are necessary for the expedited appeal to take place:

    1. One party (presumably the DoJ) asks for it,
    2. The district judge issues an order stating that the case is of general public importance to the administration of justice,
    3. The Supreme Court accepts the appeal.

    Points 1 and 2 would seem to be a slam-dunk. The DoJ desperately wants this resolved quickly, and Judge Jackson is in no mood to have his decision come before the Circuit Court of Appeals again, if that can be avoided. (Besides, this case is genuinely one of "public importance".)

    The wild card here is point 3: acceptance by the Supreme Court. They could hear the case, but they could just as easily choose to refer it to the Circuit Court, and then perhaps hear an appeal from that decision.

    On the one hand, this seems to be the type of case for which the Expediting Act was designed: a case of national importance, where delay would have widespread repercussions. On the other hand, the Court has such a crush of cases, it must defer or decline action on all but the most vital ones.

    So, the Expediting Act really only offers a potental for fast resolution, which may or may not be realized.
  • This might sound offtopic, but it's interesting to see analogies to the Microsoft situation. CocaCola and Pepsi are likely in a pricing cartell, and they likely divided the market, to shut out the rest of the competition. Anyway, fact is that both are producing soft drinks with a ridiculously high profit margin, still they never manage to get into any price war with each other. Ie. as far as customers go, the soft-drink market is monopolized, in the US and in the EU. They are also pressuring food chains [analogous to OEMs in the Microsoft case] to carry their drinks exclusively with restrictive long-term contracts. There is an investigation under way somewhere in Europe (Belgium?), Cocacola threatened a food chain to increase the price of Coke if they do not sign an exclusive contract, or something like that.
  • Which is to say, we as a people are addicted to Microsoft.

    Methinks we need a twelve-step program...

  • JMS is absolutly correct. While it is a more difficult position to enforce, it is way more beneficial to the community as a whole than a breakup. the release of propritary API and all future ones would allow ANYONE who wanted to make a compatable piece of software to compete in the marketplace. If M$ is simply broken up then the individual departments have to see the economic feasability of developing for smaller/startup OSs. How long would it be before M$-Office group would develop its products for BeOS? How long before some startup creates an Office compatable suite if the APIs are released? I think the answer is clear.
  • by jms ( 11418 ) on Tuesday November 09, 1999 @01:05PM (#1548128)

    The key issue to me is control over the Application Programming Interface, and the ability to create and sustain middleware.

    I think that the judge understands this. and I'm hoping that he chooses the correct remedy:

    (1) Microsoft should be forced to openly publish all of its APIs.

    (2) They should be prohibited from utilizing any API that has not been completely disclosed.

    (3) They should be forced to provide correction, clarification and explanation, when the behavior of any API differs from the published specification, or is unclear or appears to be in error.

    (4) They should be forced to disclose all new APIs as they are created, to facilitate third parties' efforts to make their software compatable with Microsoft software.

    Microsoft should NOT be forced to reveal its source code.

    This would be bad for the open source movement, because:

    (1) It would open free software authors, especially the WINE authors, to charges of copyright infringement. Right now they are in the very powerful position of having NEVER SEEN Microsoft's code, so they have NO cause to claim copyright infringement or misappropriation of trade secrets. In short, they would lose their "clean room".

    (2) Programming compatability efforts should always stem from published APIs, rather then Microsoft's buggy code.

    Source code alone is NOT an acceptable substitute for published APIs. Just forcing Microsoft to reveal its source code would NOT stop Microsoft from continually shuffling bugs around in order to break competing software. Just being able to see the source code doesn't matter if each OSR release of Windows deliberately breaks your code. You'll still go bankrupt because Microsoft software would continue to work from release to release, while your code would break with each OSR version, and you'll never be able to keep up.

    Breaking up Microsoft would not benefit consumers the way that the breakup of Standard Oil benefited customers.

    Breaking up an oil company creates a number of different companies, each of which produce an identical, standard product. These companies must then compete on the basis of customer service, product quality, and product pricing.

    Microsoft cannot be successfully separated this way.

    There are two different scenarios for a breakup of Microsoft:

    1) Breakup along product/service lines. The result is several companies with very close ties that are not in competition with each other. Multiple monopolies instead of a single monopoly. This does not benefit consumers.

    2) Breakup into several competing companies, each of which obtains the right to all existing Microsoft software. The result would be the fragmentation of all Microsoft programs. Eventually, one of these "baby bill" companies would come out the winner, while the rest of the Microsoft spinoffs wither away and die, and we are left back at square one.

  • In general terms, it would be an awful precedent to give the government the power to dictate what software companies can do as a whole.

    How would such a precedent affect the other software companies such as Sun, for example, and OSS movement?

    I've seen this kind of sentiment expresssed many times here. To begin with this is not a new area of the law. The Sherman Anti-trust act has been around for over 100 years. It is unlikely that any significant new precidents would be set here.

    In fact, this law is USUALLY applied to companies that are in new technology areas as is the case with Microsoft. It is not unusual for a company in a new technology area to gain an upper hand for one reason ore another. Prior cases like IBM, AT&T, Alcoa, etc. are in fact monopolies that arose out of the development of new technologies.

    After a technology matures a bit it is much harder to gain monopoly power through organic growth. More likely you run into the first part of the Sherman act which makes price fixing illegal, or the FTC which prevents the formation of monopolies through a company buying up its competitors.

    Unless Sun develops a stranglehold on some part of the market AND starts using it's monopoly power to control the market it doesn't have anything to worry about. And it looks pretty unlikely that Sun is going to gain any sort of monopoly any time soon given it's competition from HP, Linux, MS and so on. OSS is even a less likely situation. How can you have a monopoly on something that is freely available?

    Remedies are a very tricky question. After thinking about it the answer seems to me that we need a way to break MS's stranglehold on the OS. Sun has suggested that a complete public disclosure of the APIs is an appropriate remedy. I kind of like that idea, because it would make Windows clones likely. Wine could become a perfect emulator. This would free people to use whatever OS AND the vast array of Windows specific applications. Shattering the interlocking of the Windows API and Windows applications may in fact be the trigger that is needed.

  • I may be in the wrong state of mind today, but:

    I don't care much for MS, I hate Windows 98 more than anything in this Universe. But why is Microsoft going through this?
    They sold an OS to computer companies. They bought it. The computers sold like crazy.
    The Computer companies didn't HAVE to buy this OS. They could have done what ever they wanted. MS is NOT the ONLY software company that has developed an OS. Anyone can go out and buy a copy of Linux at your nearest Best Buy. They do sell MACs in computer stores. It is possible to build your own computer and NOT purchase an OS.
    I know that WE know all of this. It isn't a hard thing to do (not own a MS OS). I don't see why they have to go to court for this.
    Last nights on Jay Leno, Jay made fun of the whole thing by showing "the new" Monopoly. It had all of the squares showing a Windows logo. I laughed for a second, but for all of the computers that I have at home, only one has a 1024mb partition that run Windows NT. Everything else is all of the above. From MAC to LINUX to Solaris.
    How is this a Monopoly? Please explain. I have had the choice to run any OS that I want. But I can't choose what phone company runs into my house, or what cable company I can use. Am I missing something here?
  • Right now with the case, everyone involved needs to think of sensible solutions, not knee-jerk ones.

    In general terms, it would be an awful precedent to give the government the power to dictate what software companies can do as a whole.

    How would such a precedent affect the other software companies such as Sun, for example, and OSS movement?

    Now, there are valid points to the case. For example, I would not mind a lowering of the price for software in the consumer arena to more competitive or affordable levels (look at the price for hardware...).

    Possible solutions would be to lower the pricing of Windows (for consumers - W9x) and perhaps restructure the pricing for W2K. This is all speculation mind you. One person commented a while ago, that perhaps restructuring or completing removing the client access licenses aspect of Window Servers would a benefit. Another possibility is to have an even price that every OS manufacturer charges to OEMs. That way, everyone has an equal shot at the consumer who calls in to request a machine.

    Whatever the decision may be, it needs to be fair to Microsoft and to the industry as a whole. For example, if the option to limit the cost of the OS (taking into account inflation and what not) were to be chosen then no one company can charge higher than a certain amount. Disclaimer: I don't know if even such an idea would work, but the example illustrates my point.

    All in all, the decisions and outcomes of the case should benefit all consumers . This includes the mindless masses who want to use the internet to increase the quality of their lives, not just MS-bashers. =P Mob mentality usually means the end for everyone involved.

    Just my 2 bits...



  • Not necessarily immoral. If settling would reduce the penalties they suffer, I wouldn't hold it against them. But I would rather see them fight it out, because if they settle they implicitly accept the false conclusions of Judge Jackson.

    Don't you understand that the conclusions in the Finding of Fact were drawn because these were the facts shown to the judge during the trial. You can yell "biased" and "unfair" all you want, but Microsoft didn't put on a decent defense about the facts. If you think the case was unfair, it's because Microsoft couldn't be bothered to put up an honest or usable defense. They preferred to make statements on the steps of the courthouse, create bogus videos, and lie in court--how many Microsoft witnesses were caught in a lie?

    The judge's conclusion, with which I heartily concur, tells me that Microsoft didn't put on a defense on the facts because the facts as presented by the Department of Justice were accurate and reliable. Microsoft has already fought on the facts, they lost because they had no facts on their side. They aren't likely to get another bite at this apple.

  • Yes, according to this NY Post article [nypost.com], Texas Gov. George W. Bush is a close friend of Microsoft Chief Operating Officer Bob Herbold and said at a conference of high-tech executives in Arizona last month that his administration would "always take the side of innovation over litigation.".

    I mean, as a presidential candidate you cannot get any more explicit than this, without actually committing obstruction of justice and interfering with ongoing litigation.

  • by Gleef ( 86 )
    That bit of damage has already been done. I'm not a lawyer, but I'm pretty sure the Findings of Fact indicating that Microsoft is a monopoly that abuses their monopoy power is now a matter of public record that can be used in other relevant suits. I'm sure that Caldera will be incorporating it into evidence for their suit [caldera.com].

  • Got any basis for that statement? The only criticisms I've read of the FoF went on and on about PDAs, WebTV-like appliances, Online Office-type applications, etc. They make a lot more unfounded assumptions than the FoF did. I found them to be at least as shaky as they claimed the FoF was, and usually moreso. Not to mention the fact that they never took into account what Microsoft's current position would mean for those new markets if they actually start to go anywhere.

    I haven't seen a decent review of just the legal issues in the document. The New York Law Journal article is the one of few that has brought up many legal issues at all. So far everyone has just tried to back up or second guess the judge's findings.

  • by Parity ( 12797 ) on Tuesday November 09, 1999 @12:19PM (#1548165)

    Try reading the FofF . . .

    It is rather detailed, and does show much more than this. Particularly, it shows ms incurring great costs for the sole purpose of impeding netscape and introductions of applications that would rely on netscape's API rather than windows.

    Actually, I thought it was more important that the finding of fact showed that Microsoft ordered intel to stop the development of NSP, undermined Java with proprietary protocols, -and- clobbered Netscape. IANAL and you are, but, I thought it was the -pattern- of anti-competitive actions that made an anti-trust suit strong.

    Also, I think not having an NSP-equivalent technology five years after Intel had developed it will be more compelling 'consumer harm' to that nitpicky appeals court if the case goes there after all. I'm not sure anyone other than developers (and Judge Jackson :)) really appreciates the harm done by undermining cross-platform development, but 'this technology existed, but customers never got it because MS said no' is crystal clear.

  • by hawk ( 1151 ) <hawk@eyry.org> on Tuesday November 09, 1999 @01:16PM (#1548166) Journal
    But it also applies to a microsoft appeal. "any party" can file the application after a notice of appeal; ms can appeal, then DoJ removes to the SC

    hawk, esq., not giving legal advice
  • Anyone who likes paying 5 cents/minute for long distance (vs. the 50 cents+/minute paid in the 70s) should be kissing the butt of the government for helping to arrange the breakup of AT&T. Bet you didn't know at the time of the breakup how cheap a phone call could be...

    Except that AT & T was not a free market corporation. They had substantial government support and regulation.

    If you want to see a country where capitalism is unfettered by the government, take a look at Russia these days. It's a libertarian paradise, isn't it?

    No, Russia today is closer to feudalism than capitalism. Capitalism is characterized by secure property rights, strong punishment of crimes, and minimal government. Russia doesn't meet any of these criteria. They still have a large government, and government agents routinely harrass and demand bribes from businesses. Russia isn't a Capitalist economy in any sense of the word.

    And as a by-the-by, why is it that the same people who think that big government is inherently evil think that big business is inherently good?

    Because (unless they have help from the government) governments can't throw you in jail. They can't force people to pay for their "services." They can't pass regulations about all aspects of your life. Plus, the government is a couple of orders of magnitude larger than the biggest corporations. A large corporation has anual revenue measured in the tens of billions of dollars. The federal government spends $2 trillion a year.
  • If the DOJ is prosecuting, then Microsoft ought to be entitled to exhaust all possible legal remedies - including a long drawn-out appeals process. That's how it works for private citizens. I think MS is guilty as h*** but they're still entitled the same protections you and I enjoy, IMO. However, IANAL.

  • Actually, I was just comparing laws to morals, but now that you mention it, psycotic socialist moral relativist kook would be more accurate. Actually, I'm not really a moral relativist exactly. Moral relativism breaks down when you get into a core set of morals which, I believe, are universal to all cultures. I do think that there is a huge amount of variance in morals, and that societies tend to play games with morals quite a bit (i.e. It's bad to kill people, unless sentenced to death by a judge)

    The psychotic athiest socialist moral relativist kook

  • by um... Lucas ( 13147 ) on Tuesday November 09, 1999 @01:20PM (#1548195) Journal
    Or rather than that, they simply need to document all the features used in their file formats.

    Requiring them to adhere only to open standards would be another horrible situation. You would in essense bar them from "innovating". I know, they don't innovate now, but one day, a new idea might percolate up from the coffee room, and then they'ed be prohibitted from using it because it was a new way of doing things.

    Let them control their softwre, but require them to publish, document every tidbit. Make them hire staff just to answer questions about how something works (the MS Access file format, as a hypothetical example) on a timely basis.
  • None of those address the actual problems with Microsoft, though. I think what needs done is simply two things:

    1. Seperate the OS and application aspects of Microsoft, and make their applications people deal with the OS side of the house through the same channels as every other application vendor out there.
    2. Impose a restriction on Microsoft and every other application vendor: if they claim to support a standard, they must completely and exactly support the standard as it is written. If they want to add extensions to it and depend on them, they can't claim compatibility with the standard.
  • by Keelor ( 95571 ) on Tuesday November 09, 1999 @10:38AM (#1548205)
    The decision needs to be made now (now being within the next year or two, no more) as to what the punishment for Microsoft should be. The judge has found that Microsoft has shown monopolistic behavior--I think just about any judge will agree with that. However, the Supreme Court must decide what to do with that. Four or five years from now, which is when the case could finally get to the Supreme Court under normal circumstances, there is a good chance that Microsoft will no longer be a true monopoly. Even if it is, it will not be a monopoly of the same form, as Gates & company are surely being more careful about who they shoot down right now and will continue to do so for a while.

    The important thing to realize here is that, unbelievably, this case is somehow bigger than Microsoft. If 4 years from now, this case is appealed to the Supreme Court, there is a chance they could turn down the case as no longer being worthwhile if MS has lost it's position of power. That would completely lose the point of this case--it's not whether or not MS is a monopoly (it is) or whether it abuses that position (it does) but whether or not the US government has the right to tell any software company that it can't use any means necessary to gain market dominance. This is where the true importance of this case lies, and the Anti-Trust Expediating Act may be the only way for the Supreme Court to really make that decision. There could be another MS in a related market years from now, and it would be nice to be able to stop them before it was too late.


  • by luge ( 4808 )
    When you boil it down, what we as private citizens get is the right to appeal to the Supreme Court. This is exactly what MS is getting- except they get to skip all the intermediate crap. While this may not actually be of benefit to MS, the point of the appeals system is to find "truth." They do have the right to that-and since the Supremes are the ultimate arbiter of "truth," that right is being provided in full. Though we take it for granted, no one has the right to delay and obfuscate- so they aren't losing anything.
  • by sethg ( 15187 ) on Tuesday November 09, 1999 @01:27PM (#1548215) Homepage
    Here's my summary of the judge's line of argument:

    Netscape and Sun, with Navigator and Java respectively, could not clone the Win32 API (IBM tried doing that with OS/2, and gave up), but they tried to make it irrelevant.

    Both products had (or tried to have) APIs that were the same across platforms. If these products become technically successful (instead of being "write once, debug everywhere") and gain enough market share, then third-party software developers will be able to write programs in Java, or programs using the Netscape APIs, and they will work on any platform that supports Java or Navigator. If enough third-party applications depend on Java, Navigator, Lotus Notes, Perl/Tk, or some other cross-platform middleware application, then people investigating a non-Windows operating system would have a lot more applications to choose from -- and Microsoft's monopoly goes bye-bye.

    When Microsoft realized that they faced this competitive threat, they exploited the monopoly power they already had to attack Navigator and Java. To boost Internet Explorer's market share, Microsoft employed several strong-arm tactics that only could work because of Microsoft's monopoly power, and could not be justified (in the judge's opinion) as attempts to make things better for the consumer. Examples given in the FoF:

    • Microsoft told Intel-compatible-PC OEMs to make Explorer their default browser, in exchange for deep discounts on Windows licenses, lucrative co-marketing deals, and early access to Windows beta copies and technical information. OEMs who refused to cooperate were at a massive competitive disadvantage, and since no other operating system for Intel-compatible PCs has anything close to Windows's market share, they could not simply walk away from Microsoft.
    • After IBM announced that they would preinstall Lotus SmartSuite (another middleware application) on their PCs, Microsoft halted negotiations on giving IBM a Windows 95 announcement. IBM ended up receiving the license fifteen minutes before Windows 95 was officially launched (on August 24, 1995); other OEMs had Windows 95 PCs ready for the back-to-school market, but IBM didn't. Microsoft also shut IBM out of a number of other programs for OEMs. IBM lost large accounts representing about $180 million in revenue, because the customers thought that due to the strained IBM-Microsoft relationship, Windows wouldn't work as well on IBM hardware as on machines from other OEMs.
    • To limit Navigator's market share for MacOS, Microsoft cut a deal with Apple, in which Microsoft promised to continue to produce Microsoft Office for the Mac in exchange for Apple making Explorer the default browser.
    • In exchange for preferred treatment on the Windows desktop, a number of ISPs had to make Explorer their default browser, refrain from promoting Navigator, and had to make their home pages use some Explorer-specific tags.
    • Microsoft's developer tools for Java used a native calling interface that differed from Sun's interface. They could easily have given developers the option to use both methods, but they didn't. A Java-bytecode program that used Sun's native code interface wouldn't even work on Microsoft's JVM, and one that used Microsoft's interface wouldn't work on any other JVM.

    Economists and business analysts could argue about whether or not all these things harmed consumers, and in fact both sides did argue about this in front of the judge. It's a judgement call, but this is the sort of judgement call that judges are paid to make.

    Microsoft could have responded to the Navigator/Java/etc. threat by concentrating their resources on improving Windows -- just as Intel responds to AMD and Cyrix by trying to improve the Pentium. But merely building better products wasn't enough for them; they used every technique they could get away with to punish their competitors, using the sorts of punishments that only monopolies can mete out.

    The judge hasn't issued his findings of law yet, and IANAL, but... Guilty, I say! Guilty, guilty, guilty!

  • Two slight problems with the idea that Microsoft is entitled to the same due process as private citizens. One, Microsoft is a corporation, not a person, and as such is an artifact of some state granting it a charter. Two, there is no death penalty for corporations, even when they kill. They enjoy special priviledges (like corporate indemnification from liability for officers) so it is not necessarily unfair that they might face a different process.
  • As much as I hate MS, I admit that this case has a certain gravity. As unfair as it sounds to send an individual to jail without appeal, there is a large distinction; as such, it must be handled with carefull consideration.

    First off, an individual is smaller, and less likely to offend people and interests. A company of MS's size is hugely exposed and stands to run afoul of many political interests. The decision of one judge, can potentially flush billions of dollars down the drain, put thousands of people out of work, crush an industry, etc. As much as MS may deserve this treatment, I'm not inclined to treat it casually.

    Secondly, when an individual is convicted of a crime, it is normally for a specific act and there is much less room for interpretation. e.g.: murder is murder. Antitrust on the other hand, is more open to interpretation and tends to cover a prevailing behavior in the company, rather than a specific act.

    Thirdly, I don't believe every single case should get full access. I do, however, require more information on this law before i'm willing pass personal judgement. That being said though, I'm all too happy to see MS's fate decided sooner rather than later.
  • Oh, you mean Excel using secret OS functions in the days of Lotus 1-2-3 wasn't the only and last event of its kind?
  • Well, its about time the DOJ expidited this along. I remember Microsoft doing battle with the DOJ about the same things that started around 1995. When will it end? How many more cases will open up due to competitors being wiped out due to Microsoft?
  • by tilly ( 7530 ) on Tuesday November 09, 1999 @01:32PM (#1548238)
    These are the judge's FoF. Period. Who done what when to whom and how that was done. Very difficult to reverse.

    The next phase involves submissions on findings of law. Do the actions described in the FoF violate the law? This is much easier to reverse but must remain consistent with the FoF.

    After *that* comes penalties, which can be reversed more easily still.

    At least this is the case if you are talking about the same Microsoft trial whose judge just released the findings of fact...

  • by hawk ( 1151 ) <hawk@eyry.org> on Tuesday November 09, 1999 @01:37PM (#1548248) Journal
    >>monopoly price of $89 rather than competitive
    >>level of $49.

    >Baloney. This is a very standard price for a
    >large software package for Windows.

    Utterly irrelevant to the market power question

    >Is Apple a monopoly too?

    again, irrelevant.

    What matters, as is explained at length, is that the price comes not from the market, but from monopoly profit maximization. That's illegal. If you don't like it, work to change the law.

    >>refusal to deal with IBM--limiting consumer

    >Looks to me like IBM is selling Windows

    After being forced to capitulate to the demands to remove products that were seen as a threat to the windows monopoly--an illegal use of monopoly power. If you had read the document, you would have found that the licences came 15 *minutes* before the release of W95.

    >Besides, there are lots of other
    >companies that sell Windows-equipped computers.
    >Would it really be that big of a deal if one
    >company didn't have it?

    If it's because that company was denied access to windows for providing choices and options that consumers wanted, yes. Which, those of us who read the findings found, is what happened.

    >>blocking distributiona of netscape as a choice.

    > Consumers can download Netscape in a matter of >minutes.

    Like the rest of these, well documented in the FofF. This doesn't happen unless there is a compelling reason. Netscape doesn't need to be better, but amazingly better before any noticable share do this. In the meantime, blocking the initial access prevents the development of the API.

    >> overriding consumer's choice of other browser
    >>and forcinguse of IE

    >I haven't used Windoze much, but the few times I
    >used it Netscape seemed to work just fine.
    >At no point was I "forced" to use IE.

    Once more, you are ignoring the contents of the document. IE is launched in some circumstances *regardless* of the choice made. Developers had to agree to use IE and it's help mechanism to get early access to needed technical information--that is, they had to agree to help lock out netscape.
    And an ms executive is quoted as saying that ms must make the use of any other browser a jolting experience. Again, information readily available to those of us who read the document rather than making up contents to attack.

    >> revoking licenses of OEM's for accomodating the
    >>choicesdesired by consumers

    > As I understand it, this practice has already >been curtailed,

    This was not part of the earlier consent decree. And curtailing it after the fact doesn't change that at the time it was committed (Compaq's W95 license *was* revoked), it was an illegal use of monopoly power.
    >and it is arguably a net harm to
    >consumers over giving Windows indiscriminately to
    >all comers.

    It's not about "indiscrimately." It's about "give the consumers a choice other than MS in browsers, and you can't sell windows."

    >But isn't this within Microsoft's rights?

    Only with radical changes to U.S. Law. Tying, leverage, refusal to deal . . .

    >Besides, the only reason that this tactic worked
    >was because almost all customers *do* want

    So? It is illegal to use the power from a legal monopoly to charge a higher price, or to create another monopoly.

    And it's not Windows that consumers want, but the applications that run under it. If there were a choice (the netscape API), consumers could behave differently. *This* is what ms is trying to prevent.

    > And there are a few computer makers that will
    >sell you other OS's, so what's the problem?

    Committing just about every single act prohibbited by antitrust law? Destroying a competitor for the sole purpose of protecting the windows monopoly? Forcing higher prices, lower reliability, lower performance, and less choices on the consumer (again, each of these is documented).

    hawk, esq., making the cardinal mistake of arguing with a troll . . .
  • by hey! ( 33014 ) on Tuesday November 09, 1999 @01:39PM (#1548254) Homepage Journal
    Well, I don't know what the party affiliations of the justices are, but it's not really right to consider them republican or democrat, and its extremely hard to try to predict how somebody will break on an issue depending on who appointed them.

    To be sure, we can reasonably peg Scalia as being on the right, Ginsburg and Stevens to the left, but that doesn't mean chicken shit. First, there's the different ways you can be on the right or on the left (you can be a right wing activist or a left wing activist, or you can favor deferring to legislative intent and prior precedent etc.) Then there's the fact that these guys (with the exception of Thomas who's kind of a dim bulb) are the mega-geeks of the law -- they may have ideological biases, but their technicians who are necessarily going to view the case on a different level. Finally, the centrists like O'Connor really hold the power in the court.

    I wouldn't be surprised to see a majority opinion written by Souter, who seems to be one of the bigger technical braniacs on the court.
  • I'm a big fan of things like the Pure Food and Drug Act. Think how many fewer "seal babies" there would have been if the Europeans were as tough as the FDA when it came to Thalidomyde.
    Actually, I'm a *lot* more in favor of a Microsoft break-up than I am of the FDA. That the FDA came out of the Thalidomide thing looking good is an accident, where they *didn't* follow their own procedures, and got lucky anyway. And I consider the way they suppressed information about aspirin and heart disease, and about ulers and antibiotics to be no less than murder on the installment plan!

    Don't go claiming either MS or FDA is good -- they're both thoroughly corrupt!

  • While the law is obscure, the NYT (for one) reported on this months and months ago, shortly after the trial started. You can be sure that lawyers on both sides have been well aware of it, whether or not it has been mentioned publicly- neither side would benefit by publicizising something that the other side has a chance (however slight) of not knowing.

  • > Actually, I thought it was more important that
    >the finding of fact showed that Microsoft
    >ordered intel to stop the development of NSP,
    >undermined Java with proprietary protocols,
    >-and- clobbered Netscape. IANAL and you are, but,
    >I thought it was the -pattern- of
    >anti-competitive actions that made an anti-trust
    >suit strong.

    Yes, it's all of them, and particularly the pattern. I was merely pointing out specific examples to a troll who didn't read the document.

    It's worth noting that at *no* point in the FofF does the judge find that the mrere inclusion of IE was a problem. It's the massive use of resources to target anything that could affect the windows API (at over $1B) that's the problem

    hawk, esq.
  • by Hrunting ( 2191 ) on Tuesday November 09, 1999 @10:45AM (#1548273) Homepage
    Is it really in the DOJ's interests to take this thing to the Supreme Court right now? I may be wrong here (and if anyone has the current statistics, please post them), but I think the Court is majority Republican right now, which means that getting a decision against Microsoft would be a little harder to do (even impartiality is reliant on human views). I can understand the DOJ's pursuit of this quickly in light of what looks like a strong Republican showing in the polls, but I think the Supreme Court will be a lot more sympathetic to Microsoft's arguments than Judge Jackson was.

    Again, I may be wrong about the makeup (I'm just going by my current events knowledge), but the DOJ has to remember that they are still playing in a very political arena now.
  • >I for one am glad they included IE with Windows.

    While microsoft tried to make it appear to the public that that was the issue, andthe DofJ didn't fight that perception, that's not the problem. The FofF does not say that ms couldn't include IE with Windows. It's all of the actions that ms took to stop the distribution of navigator that is the problem.
  • Assuming, of course, that the Supreme Court takes the case. They are not obligated in any way to take any case, and they usually take only cases concerning Constitutional Rights of lack thereof.

    Every year, hundreds of cases have the opportunity to go before the SC. The SC decides whether to hear a case only if it is in their interests. They are free to pick and choose which statements they wish to make about the Constitutionality of any case.

    Another option is that the SC delegates the case to a District Appellate, a more likely situation, because the case is not Constitution-based and therefore not the job of the SC. The SC does have such authority.

  • Getting split up is by far the most likely outcome, and the one that both the WSJ and FT seem to have expected in yesterday's editions. Weaker remedies would have been to have fined the company, to impose restrictions on the kind of bundled features that MS could include with its OS software.

    These aren't likely remedies by themselves anymore: the severity of Jackson's initial rulings suggests a similarly severe outcome. The FT suggested that dismantling MS along product lines would be the most likely punishment, and it is rather hard to see how it could otherwise be achieved.

    I haven't seen any mention elsewhere (ie. other than on slashdot) of the idea of releasing the source to Win98/WinNT/IE under an open source license. It would be a nice remedy in that it would transform them overnight into non-monopoly goods without restructuring MS or interfering with its `right to innovate'. It would badly hurt MS revenues, but that sounds inevitable anyhow: it seems a much more tenable outcome today than it did before the ruling.

  • Sorry- "conservative" doesn't mean the same thing as "conservative" in the real world. I don't know that this court has any clear record on anti-trust cases and regardless, it is litterally a rule that if the outcome seems obvious- they'll rule something completely unexpected.
  • It might be misleading to say that anyone can appeal to the Supreme Court. The Court can simply choose not to hear a case. There does not exist a "right" to have your case heard or even paid attention to.
  • But it sure doesn't hurt for more people to know about it. I first heard about this in a Register article shortly after the anti-trust trial began, and mentioned it two days ago [slashdot.org] (though I admit it, I was wrong about exactly what act it was: IANAL.) I'm really surprised it hasn't been more extensively reported in the press. Here's a very fine link [cornell.edu]. Note particularly this part [cornell.edu] which says basically that BillG could do time in the slammer for all this.

    I'd like to put another prediction on the table: the issue of whether remedies are going to include a large fine is far from settled. Consider that one way to prevent Microsoft from making predatorial acquistions is to confiscate the war chest.
  • jms wrote:

    Microsoft should NOT be forced to reveal its source code.

    Agreed, unless Microsoft is forced to put the source code into the Public Domain. Then any copyright questions become moot. I don't think it's likely tho.

  • As you live in the Mac and not the Windows world, I can understand your not really being of light to the monopolistic policies of Microsoft. Let me give you an example you would understand. From the finding of fact paragraph 349.
    A few days after the exchange with Waldman, Gates informed those Microsoft executives most closely involved in the negotiations with Apple that the discussions "have not been going well at all." One of the several reasons for this, Gates wrote, was that "Apple let us down on the browser by making Netscape the standard install." Gates then reported that he had already called Apple's CEO (who at the time was Gil Amelio) to ask "how we should announce the cancellation of Mac Office . . . ."
    Such actions are of obviously dirty handed, but perfectly legal accually. IF!!!! there is compitition in your market place. But having an monopoly, or even something close to a monopoly (I believe 45% is considered enough) causes a company to be under a different set of laws in which such things are purly illigal.
    For more things in the Mac side.. check out paragraph 104-110 in the finding of fact
    (yes the paragraphs are numbered so you don't have to count them)
  • I'm really in favor of Scott McNealy's opinion.

    1 - Force them to divest their holdings in other companies,

    2 - prevent them from investing in or aquiring other companies for 5 or 10 years, 3

    3 - disallow any restrictive agreements, and

    4 - force them to open up their prices, so everyon pays the same thing with the only discounts avaialable being those strictly based on volume.

    5 - And drop those market development agreements.

    In other words, regulate them. And what do you do if they cheat? Start this all again, while they continue to rack up those monopoly profits? And they will cheat - they've done it before (see how they made a mockery of the previous anti-tying settlement). Even worse is the precedent for regulation in the software business itself - a well-regulated monopoly is by necessity awfully dull, and is that what we really want?

    I think that regulation of Microsoft is a non-starter. The remedy we need is to put the Windows source code, including future versions, in the public domain. Put the load/save parts of the office suites into the public domain for good measure, as well as anything resembles an interface protocol. Then we will at once cure the problem and apply a suitable penalty. As for restitution, I guess it's not necessary for the government to take care of it. The civil court system will probably handle that very well. Um, that leaves the little matter that breaking the antitrust laws is a felony crime of which directors and officers of the company may well be guilty. (As is perjury.) Presumeably a separate trial would be required, should the government decide to pursue it. Think Michael Milken.

    Is this too harsh? Ah - no, it's not harsh, it's just life. Life will go on.
  • by bmetzler ( 12546 ) <bmetzler@EULERlive.com minus math_god> on Tuesday November 09, 1999 @10:56AM (#1548352) Homepage Journal
    Regardless of where you stand on this issue, I think everyone would agree that it is best for all the parties concerned if the case is brought to a final resolution quickly.

    I think that Microsoft would be interested in dragging out the case as long as possible. Why? The longer a case drags out, the more money it costs. If a case is drug out long enough, someone is going to run out of money and will be forced to drop the case. And Microsoft certainly isn't going to run out of money first.

    That's why it's imperitive for this case to be resolved as quickly as possible. I have a feeling that Microsoft knows they are dead guilty, and must find absolutely any way of getting out of the case. Relying on public opinion to sway the case didn't help them, so now I believe they will use time.

    In an extremely short time I predict that we'll see the mighty PR machines spewing out garbage about how the case should be dropped because it is costing taxpayers "too much money".

  • A corporation is not a private citizen. Additionally, this law applies only to antitrust situations. Where this occurs, the company is rich - very rich from prospering from the monopoly status. If they were able to tie it up in courts, there would never be any legal action against these titans. They would eventually manage to buy their way out of it, or diversify enough that the original ruling would have little or no effect on the whole.

    Additionally, the Bill of Rights and Constitution are in respect to people - not corporations. Suing/filing charges against a state sanctioned entity (a company) is not the same as bringing charges against the CEO of said company.

    Just my $.02 worth.
  • It really depends on what their chances in the Supreme Court ARE. I mean, there really isn't such a thing as "the government" that they're facing here. They'd be facing the conservative Rehnquist court.
  • One card that ms and its supporters will be looking to play is the economic impact of ANY punishment to the company. Anyone remember Bill&co's pathetic attempts to manipulate the econmic fears of a delayed Win95 launch - I recall either bg or sb saying that the stock market could loose big time!

    Now, how much you wanna bet that any of the judges getting to hear the appeal will be hit with an arguement about present economic reality outweighing past corporate misdeads?

    (While I applaud the conclusions in the FoF, I'm not too sanguine about the ultimate punishments for ms.)

    So, since this case will get there sooner or later, anyone out there follow the supreme court wrt this type of ruling? Other cases that have come before the court? Individual judge's published decisions re big business and such?
  • The Microsoft FUD machine is in over-drive, CBS just finished up an 'intimate' invterview with BGates. They tossed him all sorts of softball questions like "Tell me about the man behind the success." Bill eats chessburgers with some no-clue reporter while he talks about family, charity, and nothing about M$.

    They should have saved themselves the trouble and flashed "Microsoft is your friend" at the bottom of the screen.

    Right now more than a few million americans are thinking to themselves, "Awww. he's such a nice guy, why is our government picking on him?"
  • Why, as a devout Randian I must protest your inaccurate statement. We believe firmly that only reason can justify belief, and reason tells us that every business in history has been nothing but good!

    WOW! What a load of crap, suitable for wrapping up in /. Christmas paper (available at Copyleft [copyleft.net]) and dropping under the tree of your favorite corporate mogul!

    • Not that Ford Motor Co. management ever sold a Corsair in the '60's knowing it might flip uncontrollably, or a Mustang in the '70's knowing that because of a dangerous design flaw with its gas tank the car often burst into flames in a rear impact. Stupid customers should have figured that out on their own... and hell, DARWIN! :-)
    • While we're on the subject of Ford Motor Co., why don't we discuss their use of Jewish slave labor during Nazi Germany? Yes, in Germany, through the subsidiary "Ford Werke AG." I'm sure there were plenty of other firms, even car manufacturer such as Daimler who committed such grievous crimes -- Ford Motor claims they lost contact with the subsidiary after hostilities erupted... which might be believed except for Henry Ford's and Adolf Hitler's close friendship. It seems Ford liked Fascism. And hell, those wretched slaves could have fled... didn't they see what was coming? Awwwweeeee hell.... DARWIN! :-)
    • Nor was Occidental Petroleum really responsible for those flames popping out of Love Canal waters, nor the many illnesses in the Love Canal community caused by their dumping. Those self-sufficient and intelligent people could have moved! And hell... DARWIN! :-)
    • Nor was Union Carbide really responsible for the thousands of deaths in Bhopal after they accidentally released cyanide gas into a city of millions, never mind the hundreds of thousands who were permanently injured from breathing cyanide. But those pesky Indian people should have figured out that their employer and neighbor was playing with dangerous chemicals. Right? Awe hell... DARWIN :-)
    • Let's get back to those pesky Nazi fascists with a repose to the times of Swiss banking bliss when huge sums of gold just appeared out of nowhere from Nazi Germany and into the coffers of the Swiss banks. And why should those Swiss bankers concern themselves with annoying issues of morality and ethics in wartime Europe? They're neutral! And hell, should those gold fillings go to waste? DARWIN! :-)
    • I'm sure you wouldn't call those twenty five employees, mostly women, killed in the '91 Imperial Food Products Poultry Plant when managers locked the exit doors after fire erupted because those good-for-nothing local workers might steal a few chickens, crispy and ready to eat I'm sure, while fleeing to save their lives. And shouldn't those workers have known their bosses might feel a little concerned? They could have quit; they didn't have to take that job; they didn't have to show up for work that September day. Awwwwweee, hell. DARWIN! :-)
    • How about the more recent JCO Company's criticality nuclear accident which irradiated a town filled with "unnecessary" children, elderly, people... you know, citizens. Oh yeah... DARWIN! :-( I don't feel like smiling anymore.
    • Monsanto wouldn't sell seeds infected with a Terminator gene, ostensibly to save themselves from "Seed Piracy" if the net effect of this technology would be to destroy nearby farms which didn't also purchase Monsanto seeds. Would they? DARWIN! :-(
    • General Electric wouldn't stifle investigative reporting on the American nuclear power industry within their subsidiary NBC, would they? Would CBS kill a news story on "60 Minutes" containing a "Smoking Gun", ahem -- so to speak -- when a cigarette executive decided to blow the whistle, and it just happens to turn out that a firm about to purchase CBS also owned stock in the very cigarette company 60 Minutes was investigating? Naaaa, I'm sure such things don't happen. DARWIN! :-(
    Now, with regard to those environmental issues I'm sure you'll claim that there is not enough -- or no -- scientific evidence which correlates the PCB's and other toxic substances dumped by Occidental to the striking increase in Cancers found among the Love Canal community. Of course, you're also likely to claim there's little to no evidence for Global Warming, the Ozone hole, soil degradation and erosion from non-sustainable farming practices, or that we're annihilating much of our oceans life and irradiating and contaminating ourselves from dumping toxic and nuclear waste into the ocean and then fishing the sea to extinction. Huge corporations don't do such things, only huge governments! And I'm sure you'll argue that these companies had every right in a "free market" to use any and every advantage at their disposal to gain marketshare... hey, anything for a buck, huh? :-)

    But let's get to the topic at hand: Microsoft. Why should the big bad Justice Department play rough with Microsoft when all they've been doing is "innovating" their way to total domination of the software industry? Microsoft never did anything wrong, did they?
    • They never pirated on-the-fly disc compression software from Stacker, Co. by releasing Stacker's binary unlicensed in DOS 6. Of course, courts say something different... but that's just the big bad government talking.
    • Hey, who would blame Microsoft for checking to make certain users were running legitimate copies of MS-DOS before starting Windows 3.1? I mean, they wrote it and if end-users want to screw themselves by buying a competitors product, why should they get to enjoy the benefits of their purchased copy of Windows?
    • It's OK for Microsoft to release Internet Explorer for free, even though it cost $100 million a year to develop, because that's "innovation" in the market place. If a foreign firm tried this (say with discount memory prices lower than manufacturing costs) the big bad government might call it "Product Dumping"; but hey, that's the big bad government talking!
    • And Microsoft should have every right to form exclusionary contracts with OEM vendors. They don't have to ship Windows! Why they could just sell the computer with a blank disk! Or maybe an old copy of DR-DOS! :-)
    Buddy, I've read Ayn Rand for years and understand Objectivist theory quite well. When applied in force without regard to basic legal and human rights it evokes Social Darwinist results throughout the population. People are actually quite frail complex systems -- easy to kill in mass. Consider your philosophy carefully... it's consequences unchecked could cause devastation across the planet.
  • If the DOJ is prosecuting, then Microsoft ought to be entitled to exhaust all possible legal remedies - including a long drawn-out appeals process. That's how it works for private citizens.

    This case is going to end up at the Supreme Court anyways, there's no one who doubts that. So any of the decisions made in court before the Supreme Court is just irrelevant. Since the only decision that counts is the Supreme Courts', you may as well go straight there and prevent Microsoft from not only continuing to waste millions and millions of taxpayers dollars, but also prevent them from continuing to engage in anti-competitive practices for many years in the future.

  • If Compaq or Dell decided not to bundle Netscape, that was because that was their ultimate decision.

    Don't skirt the issue. If you believe that it was really their ultimate decision then lets see some documentation. Just because you say so, doesn't make it so. Without facts, you don't have a real claim to stand on.

    I've tried to make it easy for you. Look, I'm willing to agree with you if you can back up what you claim.

    But I think it's going to be hard, which is why you don't do it. You see, the FoF states a very different story. The OEM's testified under oath, that it was *not* their ultimate decision to not preload Netscape.

    And that's only one example of the illegal practices that Microsoft used. The FoF was full of example after example of these practices.

  • The expediting provision is simply an old law. You cannot call it obscure just because most US presidents were backed by big business and as such they chose not to litigate monopolies. (eg. Raegan and Bush) The Shermann Act has only been applied 3 times, and you can name dozens of monopolies/kartells which survived for a long time. (eg. CocaCola [:-)] and Intel)
    By this very same logic the Constitution is obscure as well just because it's old? Expediting makes lots of sense, wasnt it Microsoft who complained about the lengthy legal process preventing them from focusing on innovation?
    Microsoft's only hope seems to be the other Bush becoming president - he was quoted saying: 'my administration will always prefer innovation over litigation'.
  • by Cyberfox ( 17743 ) on Tuesday November 09, 1999 @05:25PM (#1548400) Homepage

    It's not a matter of technical competence, although my experience with them has been that even that is lacking. It's a question of their right to suppress innovation when it's bad for their business.

    I object to that, and always will. If you question whether that actually happens or not, you've not worked in the software business. I can't even count the number of times I've heard, said, or had said to me, 'Damn, this is a great product idea and technically clean, but it'd cause problems for Microsoft, and then we'd have to fight with them. We can't win that battle, let's do something else.'

    It HURTS to have to say that. It HURTS to know that a technically good idea has to die, because it's counter to the whim of a dominant company. The only thing the Open Source community has going for it, in that fight, is that it's distributed. Almost no amount of money can stop it, because it's done for love, which is why it's the only real potential threat to Microsoft right now.

    They have NO equal competitors in their market segments anymore, everyone else clearly and openly denies that they are competing with them ('We're defining our market segment appeal to focus on X...', where X is a segment that Microsoft isn't addressing), because they're TERRIFIED of fighting with the juggernaut. Is this healthy for the consumer? Is it healthy for the technology field? No, and no.

    You probably don't care, because you probably don't think the technology advances that are being held back matter, but I sure as hell do. I want Microsoft punished, and punished clearly, and plainly, so that any other company who considers trying to suppress technological advances, or who acts in a truly predatory manner will have to think very long and hard about it.

    It's not religion, it's not politics. It's the personal technical desire to be free to innovate without being crushed by someone because you threaten their market share. If you haven't felt it, if you haven't faced it, if you haven't had to live in that constant, oppressive, professional development world, I guess I can't explain it to you.

    Microsoft is a monopoly, they are predatory, they have harmed the consumer by restricting independant innovation, and they need to be clearly and obviously punished for it, so that others hesitate to try the same thing in the future.

    That's why this case is so critical. The government must win, or innovation and technical competition will be stifled.

  • by kickahaota ( 112048 ) on Tuesday November 09, 1999 @11:26AM (#1548430) Homepage

    I, for one, hope that the DoJ does not decide to go with the 'expedited' route. Let me explain why.

    There are three courts directly involved in this case: Judge Jackson's district court, the DC circuit appeals court, and the Supreme Court. We already have a very clear idea where two of those three courts stand on the issue. Judge Jackson is clearly in agreement with the government; his findings of fact were even harsher than the government's proposed findings in a number of places. The DC circuit appeals court clearly leans much more towards Microsoft's side of things; the language they've used in rejecting many of the government's arguments on appeal makes that clear. Only the Supreme Court is largely a question mark at this point, since they have yet to have occasion to weigh in directly on the issue.

    Let's assume, for the moment, that the case is not expedited directly to the Supremes, and instead follows the usual route. Judge Jackson's court will make its findings of law, which will almost certainly go heavily against Microsoft. Microsoft will almost certainly file an immediate appeal at that point, asking the DC circuit court to review the conclusions of law before the district court starts deciding the remedies. That request will almost certainly be granted, and the circuit court may well reverse some of the conclusions of law. Then the remedies will be decided on, and those will almost certainly be appealed as well.

    Ultimately, of course, it will all wind up at the Supreme Court. They do have the option to refuse to hear the case; but in a case as important as this one, that's very unlikely. So the Supreme Court will make the final decision, based on both the district court's and the appeals court's findings.

    On the other hand, if the DoJ 'expedites' things, both the conclusions of law and the penalties will be decided on at the circuit court level; then the whole thing will go to the Supreme Court for appeal all at once; the appeals court is skipped. This certainly sounds like it would be faster, but let's look at it more closely. It's actually quite rare for an appeals court to dictate a completely new solution; in other words, neither the appeals court nor the Supreme Court is likely to say 'Here's the complete new ruling on the case'. Instead, the appeals court will more often reverse--strike out--particular elements of the lower court's findings, and then send the case back to the lower court. The lower court then re-decides the issue, incorporating those reversals. So in other words, the appeals court won't say "These three conclusions of law are wrong; on that basis, here's the new remedies." It will say "These three conclusions of law are wrong. Now, lower court, go back and re-decide on what the appropriate remedies are."

    So the end result of that is: Under the 'expedited' flow of things, both the conclusions of law and the remedies have to be decided at the district court level, before the case is appealed at all. If the Supreme Court agrees wholeheartedly with everything the district court said, that's no problem. But if the Supreme Court decides that even one of the district court's conclusions of law are wrong, and reverses that wrong conclusions, then the district court will probably have to do the 'remedies' phase of the trial all over again, in light of the new conclusions of law. And, of course, once it decides on a new set of remedies, those remedies can be appealed as well. And heaven help us all if the Supremes reverse any of the findings of fact; that would probably throw out not only the remedies, but the conclusions of law as well.

    In constrast, in the normal flow of things, the findings of fact and conclusions of law will probably be appealed fully--first to the appeals court, then to the Supreme Court--before the remedies are decided on at all. So the chances are much, much higher than we'll only have to go through the remedies phase once, since those remedies will be based on the final conclusions of law, rather than just the district court's own view of them.

    So the 'expedited' path may well not wind up being substantially faster than the standard path after all. And more importantly, what spin will Microsoft be able to place on the expedited process? Don't believe for a moment that the courts are operating wholly in a vacuum on this; there's always public and/or political pressure of one sort or another, especially at the Supreme Court level. And whatever the final solution is, it's almost certain to require various government agencies to implement it; and those government agencies are often governed by politics as well. So public opinion plays a role here.

    Everybody who's been watching this case knows what I said in that first paragraph--that the appeals court has been receptive to Microsoft's views on things. So if the DOJ chooses to skip the appeals court and go straight to the Supremes, Microsoft is going to loudly point out everything I just said--that the 'expedited' process isn't likely to be that much faster than the normal process, and may involve quite a bit more wasted effort. So they're going to claim, loudly and repeatedly, that the DOJ isn't doing this out of any desire for efficiency; they're doing this as an excuse to bypass and ignore the views of a court that they know will disagree with them. And that claim is going to strike a chord, because I believe that quite a number of viewers--myself included--are going to conclude that that claim is absolutely right. The DOJ is going to come across looking like an agency that's more interested in twisting the rules for its own benefit than it is in justice--more or less exactly what the DOJ has been claiming about Microsoft. And public opinion, which I think has been shifted the DOJ's way by Judge Jackson's harsh findings of fact, is very likely to shift right back to Microsoft. And I think that shift will have a very real impact on the sort of remedies that are likely to be imposed, and on the degree of vigor with which the government will enforce those remedies.

    The government is winning. If they just stay the course, they're likely to get most if not all of what they want. But, just like Microsoft blew their case by coming across as arrogant and manipulative of the rules, it's still not too late for the DOJ to blow it in return.

    (Disclaimer: Not a lawyer; not legal advice. Not to be taken internally. May cause drowsiness; alcohol may intensify this effect.)

  • I wonder what the history for this law is?

    For example, did it come about during the huge anti-trust time period of the late 1800's and early 1900's? During that time period it might have been used to circumvent the massive amount of corruption and influence the Trusts had created in the government.

    Or maybe it was made becuase someone realized that a Trust/Monopoly has the $$ to make the legal process take decades to execute. Which adds additional cost to the consumer (since the monopoly could conceivably continue operating for that time period... correct me if I am wrong) and also the taxpayer as well. Politics aside, remember how pissed everyone was when we found out how much the Starr investigation was costing? (flamers: chill. It's just an example, albeit a weak one. No need to jump into a political disussion...)

    "You want to kiss the sky? Better learn how to kneel." - U2
    "It was like trying to herd cats..." - Robert A. Heinlein
  • by Djin ( 58650 ) on Tuesday November 09, 1999 @11:28AM (#1548438) Homepage

    The SC can also send it back down:

    http://www4.law.cornell.edu/uscode/15 /29.html [cornell.edu]

    (b) Direct appeals to Supreme Court

    An appeal from a final judgment pursuant to subsection (a) of this section shall lie directly to the Supreme Court, if, upon application of a party filed within fifteen days of the filing of a notice of appeal, the district judge who adjudicated the case enters an order stating that immediate consideration of the appeal by the Supreme Court is of general public importance in the administration of justice. Such order shall be filed within thirty days after the filing of a notice of appeal. When such an order is filed, the appeal and any cross appeal shall be docketed in the time and manner prescribed by the rules of the Supreme Court. The Supreme Court shall thereupon either :
    (1) dispose of the appeal and any cross appeal in the same manner as any other direct appeal authorized by law, or
    (2) in its discretion, deny the direct appeal and remand the case to the court of appeals, which shall then have jurisdiction to hear and determine the same as if the appeal and any cross appeal therein had been docketed in the court of appeals in the first instance pursuant to subsection (a) of this section.
  • Anything can happen if you anger the Nine! They've got heavy armor, graviton guns, hordes of Disciples with plasma lances, and nasty spider bots, so the carnage could be terrible... and when was the last time you saw a lawyer with a nuclear grenade?


    Not those Nine?


    But more seriously:

    * Perhaps tossing out whatever verdict that hasn't yet been delivered.
    * Perhaps letting the verdict stand, w/o comment.
    * Perhaps letting it stand, and explaining why.

    It's all going to depend on what's hashed out in Jackson's courtroom; if it goes to the Supreme Court, that'll be for appeals only, if I read it correctly.
  • by sterno ( 16320 ) on Tuesday November 09, 1999 @11:16AM (#1548448) Homepage
    Actually, the punishment for Microsoft would be determined at the end of the current trial. The Supreme court merely determines whether laws are constitutional and enforced in the proper manner. The supreme court would not determine the punishment, but would rather be responsible for deciding whether the case proceeded on valid legal ground and whether the punishment was reasonable within the bounds of the constitution. In fact, since I do not see any obvious questions about the validity of the law or the way the trial was carried out I would expect the Supreme Court to deny the appeal.

    Frankly I don't think Microsoft has a chance in hell of getting out of this unscathed. To get the finding's of fact overturned would be impossible unless they could somehow proove the judge to be incompetent, which he is not. The findings of fact, even without a ruling in this case are very important when dealing with other cases such as Sun or Corel's lawsuit.

    Because Microsoft is now officially a monopoly, they are in serious trouble. Monopolies are completely legal, but if you are one you have to be very careful about how you use your power. Things that an ordinary company can get away with, you cannot get away with if you are a monopoly. Microsoft has built up a very nasty hurdle for themselves and I believe that they will fall.

    As for punishment, legal precedent indicates that breaking up a company is the most viable option. Regulation of a company would have to be very well crafted, would be subject to all sorts of potential legal boobytraps, and would generally make far more of a mess than there already is. I expect to see Microsoft divided into several small companies with strong restrictions about what boundaries they are allowed to operate within.

    A possible breakup situation:

    -Microsoft Consumer OS
    -Microsoft Server Technologies (SQL Server, NT/2000, IIS, etc)
    -Microsoft Palmtop OS
    -Microsoft Data Products (SQL Server)
    -Microsoft Business Software (Office, etc)
    -Microsoft Consumer Software (a long list...)
    -Microsoft Web Technologies (Media Player, IE, etc)
    -Microsoft Media (the MS in MSNBC)
    -Microsoft Network (although this might be part of the media group considering the ongoing mergers of cable, phone, internet, etc)

    If that happens it will be very interesting to see what happens. The consumer version of windows without the lock-in of Internet Explorer has the potential to be rendered irrelevant by the growth of the Internet. Internet Explorer, having to survive on its own without the rest of a big corporation to subsidize it will have to charge money and will lose market share to the open source Mozilla project which should be in good shape by the time the ruling comes down.

    The server software will be forced to stand on its own two feet without the windows desktop hooks and Internet Explorer hooks. It will have the advantage of being nicely integrated within itself, but the whole proprietary technology garbage will have to go away to compete against other people's products.

    Office will continue to survive because, honestly, it is actually good (if somewhat bloated and security hole ridden) software. It won't have the commitment to Windows anymore, so expect to see releases for Linux, BeOS, and any O/S that can get enough people together to buy it. With any luck, competition from other sources will drive the price down a bit too.

    In the end, hopefully Microsoft will finally get a necessity to innovate to go with their freedom to innovate. Expect them to play by the same rules they do now, they'll just have to play seperately.


  • While the Supreme Court is quite conservative, the appeals court above Judge Jackson is even more conservative. This appeals court has already reversed Jackson at least once on a prior Netscape related issue. Avoiding this appeals court is decidedly favors the DoJ.

  • My question is how much do the current laws regarding business practices have to do with the creation of the M$ monopoly?

    In particular, the whole licensing deal. This is where M$ has been doing all the wheeling and dealing. "This company gets to pay this much, thic company pays that much, and this company doesn't get to buy it at all." IMHO, I think the licensing scheme should be changed to an open method. Now, I'm not talking Open Source.

    For example, technology A is opened for licensing. It should have a set pricing scheme (1 license, 100 licenses, 1000 licenses, etc), and be available to all comers. True, this would radically change the industry, but it would offer some true "innovation", instead of a series of sycophant companies that only profit through being a "preferred partner". If the technology is for sale, it should be able to be purchased by everyone. By using a set pricing scheme, it would prevent exclusion of potential competitors through exhorbant prices.

    Just my thoughts - any other ideas?


  • Everybody who bought Microsoft products (from OEMs and partners to end users) did so by their own choice. If no one wanted microsoft products, no one is forced to buy them.

    Missed Windows Refund Day, did you?

    How about the story in my essay [wgz.org] about the future of business software? One particular company with which I have a passing acquaintance had to purchase Office 2000 just to get one bug fix which prevented them from communicating with their business partners. (I supposed they weren't *forced* to do so, but the company did feel a need to stay in business. If you don't build anything to sell, you'll run out of money pretty quickly.)

    Let's try an analogy -- 'everybody' bought petroleum distillates from 'Standard Oil' not because they all thought that it was the best deal, but because that is the only choice they could see. Sure, some people may have been able to drill in their backyards and set up a gasoline still, but did that work for most people?

    No, Microsoft isn't in the business of saying 'buy this software or your dog gets it', but the company does behave in such a way to suggest, 'Nice company, pity if you can't read documents from anyone else.'

    QDMerge [rmci.net] 0.4!
  • Everybody who bought Microsoft products (from OEMs and partners to end users) did so by their own choice. If no one wanted microsoft products, no one is forced to buy them.

    Let's see some facts then. Instead of just posting a bunch of sentences, let's see you back them up. Since you probably think that the Findings of Fact are just myth anyways, written by a judge who has no knowledge of the computer market, I'll make it easier for you.

    All I want you to do is to get me (preferably signed) documentation from Compaq and Gateway, stating that it was solely their decision to not preload the Netscape browser and that all decisions to not proload competing products occured by voluntary consent between both parties.

    I'll even make it easier for you. You can have those documents faxed to me at 209-821-5008. When I see those documents, *then* I'll believe that everyone who sold/preloaded/used Microsoft products did so by their own choice.

  • by Rabbins ( 70965 ) on Tuesday November 09, 1999 @11:32AM (#1548467)
    Judge Jackson has set a schedule Microsoft must follow:

    Dec. 6, 1999 - Justice files conclusions of law brief

    Jan. 17, 2000 - Microsoft response due

    Jan. 24 - Justice may file reply to Microsoft

    Jan. 31 - Final reply from Microsoft due.

    The goal is to keep this from becoming another IBM anti-trust case... which went on for over a decade before Reagan just threw the thing out. Hell, in even 5 years operating sytems could be completely different outdated and the case deemed worthless... I think they recognize this.
  • When I say morals, I'm not speaking of something that is necesarily good, or that I agree with. I actually wasn't making any judgement on how the system currently is. I just wanted to present one way of looking at the laws vs. morals issue.

    Incidentally, I happen to agree with you...most people are under-educated(not stupid) and/or poorly informed...which is why the government is in the sorry state that it is in. I think the best solution is to educate the people. If you teach them how to make intellegent and informed decisions, the entire society will benefit (via better laws, better leaders, etc.)

  • by sethg ( 15187 ) on Tuesday November 09, 1999 @11:25AM (#1548491) Homepage
    THe fof written by Jackson was so poorly constructed from a legal point of view that any appeal is likely to succeed regardless of the merits of the case. The fof contains many holes and overreaching conclusions that any judge would find unexceptable.

    Disclaimer: IANAL, but I have read the FoF.

    1. This is a finding of fact, not of law. It's the judge's opinion of what the events were and what their market effects are, based on how he weighed the credibility of everyone who testified. Appeals courts, unless there's a very clear and gross error, don't challenge the lower-level courts on findings of fact. Given this, how can you say the FoF was "poorly constructed from a legal point of view"?
    2. What are the "many holes and overreaching conclusions" in the FoF? Remember, the opening paragraph (before paragraph 1) says "...the Court finds the following facts to have been proved by a preponderance of the evidence". Even if some of the conclusions are overreaching from a physical scientist's point of view, or even from a criminal court's point of view, that doesn't make them invalid in this context.

    The best way out for Microsoft, as far as I can tell, is to convince a higher court that "Intel-compatible PC operating systems" (see FoF paragraph 18) is too narrow a field to constitute a "market" for purposes of antitrust law, and therefore its market share of Intel-compatible PC operating systems doesn't constitute a monopoly, and therefore its strong-arming of distributors, competitors, and potential competitors is legal. I wouldn't buy such an argument, but I don't know what the Supremes would do.

  • One reason to speed things up is that if MICROS~1 thinks that they are going to be broken up, they have an increased incentive to clear the field first. Anyone care to guess how many bodies they could pile up if they thought that they had nothing in the long run to lose?
  • If that's so, then it's an excellent reason to make a point of voting just to vote _against_ this person seeing as they've as much as vowed support for a trust that's declared war against most of the things I like.
  • Having equitable prices across the board would be a nice idea in practice, and it appears that the ability to charge different prices to different "nice" OEM's was one tatic, but I don't believe it would be workable. Consider:

    Say MS had to fix the price for Windows, across the board: $50. So, instead, the start a deal, where if an OEM promotes IE, they pay them per promotion. (and you can't stop them advertising) The better they promote you, the more you pay. A "nice" OEM gets paid $20 per promotion - and lookie here, IE is with all copies of windows, so that $20 per copy of windows sold we owe you. Nett result: cost is not the same across the board.
  • by isaac ( 2852 ) on Tuesday November 09, 1999 @11:43AM (#1548516)
    Something worth pointing out here is that the DOJ needs to bring this case to a satisfactory conclusion before our next president takes power.

    A quick search for soft-money contributions on opensecrets.org shows $331,100 in Microsoft contributions to party-affiliated organizations over the past ~8 months alone. (73% of this total ($241,100) to Republicans.) This is in an off-year, with the elections a year away and doesn't include contributions made now or in the past to any individual campaign (Gorton) And of course, we've all read the article about MS lobbying to cut funding for anti-trust actions.

    I suspect that a key element in Microsoft's strategy is to delay this process until the after the next president is inaugurated. If a Republican gets into office, the Attorney General and DOJ leadership will be replaced, presumably by more "business-friendly" characters, perhaps less inclined to pursue this matter.

    I don't think the Supreme Court's conservative nature really matters much - When it comes down to it, they're all quite smart and capable of reason (well, except for Thomas, who basically votes w/ Scalia and rarely writes any opinions of his own.)

    However, if the new Atty. General or DOJ procedurally drops the matter, there's nothing the court can do.

  • by hawk ( 1151 ) <hawk@eyry.org> on Tuesday November 09, 1999 @11:44AM (#1548521) Journal
    I am a lawyer, but this is not legal advice. See an attorney in your jurisdiction if you need some.

    >The FoF is a lot of high-sounding nonsense, which
    >shows little more than "Microsoft has a large and
    >stable market share, and works to aggressively >defend that market share from competitors."

    Try reading the FofF . . .

    It is rather detailed, and does show much more than this. Particularly, it shows ms incurring great costs for the sole purpose of impeding netscape and introductions of applications that would rely on netscape's API rather than windows.

    >Despite Judge Jackson's contentions, I see
    >nothing immoral or illegal about that.

    About what you describe, no. About what microsoft was found to do, and what microsoft's documents showed it to be doing, yes.

    >He ignored several viable alternatives(most
    >notably Apple)

    This just isn't true. Start at page 168 for the discussions dealing with IE and apple.

    >and more importantly he completely failed to
    >demonstrate harm to consumers.

    Again, read the document.

    p. 32. , monopoly price of $89 rather than competitive level of $49.
    p.59, refusal to deal with IBM--limiting consumer choices.
    p.72, blocking distributiona of netscape as a choice.
    p.84, overriding consumer's choice of other browser and forcinguse of IE
    p. 98, revoking licenses of OEM's for accomodating the choicesdesired by consumers
    p. 103, increased support costs by banning shells (leads directly to higher prices).

    And the list goes on.

    >Yes the FoF is bad for them and they will
    >probably lose, but to admit their guilt
    >would be big mistake, both legally and morally,
    >since they are not guilty.

    There is a list of things that monopolists are not allowed to do due to the harm to consumers. I can't think of any of them that weren't found to have happened--documented by ms's memos.

    But then, I read the document.

    hawk, esq.
  • The offenses, such as they are, are pretty widely spaced, as are their consequences to consumers/public/etc.

    Actually, the cases bear many similarities. The "defendents" of both cases attempted to twist the case into being about an issue it totally was not about.

    In Clinton's case, he was indicted over issues of perjury, obstruction of justice, and whatnot. Yet the press turned the issue into one over a simple dalliance, which it wasn't and never was. Microsoft is being tried for anti-competitive practices, which are illegal. Yet they (and the MS press) have tried to turn the issue into one of Microsoft's freedom to innovate. Which it isn't about. Nothing in this case has anything to do with whether MS can develop IE, or media streaming technologies, or productivity apps. It just has to do with how they treat their customers who may choose *not* to use their products.

    Both cases had something else in common. Public opinion was strongly on the defendants side. The public tended to strongly agree with the defendants portrayel of the "issue" in the case.

    Yet, the outcomes are quite a bit different. In the Clinton scandal the "jury" let Clinton off. But in the Microsoft trial the judge has found against Microsoft in the FoF. What is the difference? Jury, especially in highly visible cases decide based on emotion, ie public opinion. Judges on the other hand decide based on facts and laws. I can practically guarentee that if this had been a jury trial they would have found for Microsoft and we would have never learned what the real facts were. And if the impeachment trial would have been held by a real court, that wasn't swayed by public opinion, they outcome would have been different too.

  • by GnrcMan ( 53534 ) on Tuesday November 09, 1999 @12:37PM (#1548525) Homepage
    The moral issue is: is it right to punish Microsoft for using its well-earned influence in one market to promote its product in another market? How is this anything but a moral issue?

    Because morals vary. One person may say it is "immoral" to punish microsoft for it's success, while someone else my say it's actually immoral to stand by the side and let microsoft use it's, as they see it, unstopable power to do others harm.

    If morals were used to decide arguments, the courts would be in chaos. The only thing we have are laws. While laws may (and should, in many cases) reflect morals, they are entirely different. In fact, you could think of laws as the colective morals of a country, but your moral issue fails to reflect that. The issue really is this: Is it legal to punish Microsoft for using it's well-earned influence in one market to promote its product in another market?

    If the answer to that is yes, but the majority of the country thinks that it is immoral to do so, then the laws of the country should be changed to reflect the changing morals of the the majority of the country.

    Hope that's clear


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