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Mediator Appointed in Microsoft Case 117

fremen writes "CNN is reporting that Judge Thomas Penfield Jackson has appointed a mediator in the Microsoft case. The mediator is Richard Posner, chief Judge of the 7th Circuit U.S. Court of Appeals. Yahoo has a similar story indicating that he'll be acting in a 'private capacity.'"
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Mediator Appointed in Microsoft Case

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  • Judge Posner is one of the best known judges in the country. He is of the "Chicago School" of economics, which is to say that he thinks law should be applied in an economically efficient manner.

    Although he is not opposed to antitrust law completely, he is certainly very skeptical of it. It is true that he will only be mediating (which means that nothing he does or says will be binding), but MS cannot be upset about this appointment.


  • From a simple `linux benefitting' point of view, a vertical breakup is probably best: a decent version of Office 2000 is probably the best thing that could happen to Linux in terms of defeating its perceived `failure on the desktop'. Horizontal breakup could perversely hurt Linux, by diluting the `you aren't at the mercy of Bill's next strategic volte-face'.
  • "Chicago School" refers to the school of thought, not the University of Chicago. The name does come from the role of members of the Law school and Econ department at U of C in developing it. In terms of actual effect on the world, legal scholars, particularly Bork & Posner, have spread chicago school thought farther than economists.

    hawk, esq., and an economist too
  • 90%? I'd guess closer to 95% ;) Speaking of blue screens...month two of running Win2k no blue screens yet. Woops! I must be doing something wrong since I heard NT crashes every 15 minutes. Where can I have this problem fixed?
  • When the chicago school gets "skeptical" about antitrust law, the point to very silly cases and outcomes, or cases in which economics comparable to flat-earth physics prevailed.

    Take Brown Shoe (please :)

    The merger, which would have created a seller/manufacturor with less than 5% of the market, was blocked because it would be able to sell quality shoes at a lower price than its competitors. This was the *stated* reason of the government in opposing the merger.

    hawk, esq.
  • They have dressed Bill Gates up as a member of the "Borg" - the Startrek alien lifeform that assimilates other lifeforms (mainly humans and humanoids) into a cyborg group-mind.

    This is apparently a reference to MicroSoft's tendency to substitute assimilation for innovation, buying out, allying with and screwing over, or cloning and driving out of business any competing company that has invented anything useful in their potential product space.

    It may also be a reference to a story arc in the "Dilbert" comic strip, where Microsoft is The Borg assimilating everything and everybody technological and Dilbert is assimilated - as a result of failing to read the fine print on a software shrink-wrap contract which thus obligates him to become Bill Gates' manservent.

  • by copito ( 1846 ) on Friday November 19, 1999 @03:39PM (#1517776)
    This is the case of importance in technology today, or at least it appears to be. (I suspect that open access to broadband networks will be the decision that matters in the long run). It is facinating because nearly everyone (except Tom Christiansen apparently) uses or has used MS software and everyone (including Tom) has an opinion about it.

    Most people on /. have a negative opinion of the quality of MS software, but even more than that, most people don't like the heavy-handedness with which they have to gained and retained market-share. This feeling has been intensified since MS has taken aim at such sacred cows as Linux and open source software. Many of these same people are also wary of the power of government and don't believe that legal solutions to technical problems lead to salutory results. So here we are faced with a legal process that vindicates the ./ opinion of MS and has the potential to change the competitive landscape of software. Yet there is the nagging suspicion that the government will get it wrong and agree to a settlement/remedy that is too strong, too weak, or has too many negative side effects. Of course we're interested.
  • The breakup of AT&T showed that it wasn't smaller feifdoms that were beneficial to consumers, but actual competition. Long distance rates fell dramatically, because the breakup allowed actual competition. Local telephone rates and service haven't improved much becuase there hasn't been real competition, but the availability of services like DSL have been accelerated and priced lower because of the potential to co-locate equipment in a telco's CO, a result of the breakup and regulation that followed.

    Microsoft much different than AT&T, since it owns no physical monopoly, but as AT&T showed, it is not the physical breakup that matters as much as the ability of an outside company to compete in your space. A horizontal breakup, e.g. three units have access to the source code, sounds like it would foster competition. It might, but it would be far more drastic than the courts would allow, and IMHO, it would cause more harm than good. A vertical breakup is more tenable, since the consumer gets no real benefit from having an OS and an office suite made by the same company. This would clearly make the applications market more competitive and might improve OS competition since the applications would have more of an incentive to be ported to other OSes. It would also mean that API's would be more open, perhaps allowing better reverse engineering.

    I'd say that the best remedy would likely be transparent, non-discriminatory pricing and a vertical breakup, with some bundling restrictions. Any more would be too drastic. Any less wouldn't do much good.
  • by Chris Johnson ( 580 ) on Friday November 19, 1999 @04:16PM (#1517779) Homepage Journal
    The deal is this: if MS are sane, then they will settle. However, it's not a foregone conclusion that MS _are_ sane: some of their behavior in the case seemed delusional, and apparently the company is now fighting desperately to keep its own employees from 'losing faith' and believing in things like the findings of fact. I'd say there was a very good chance that the Microsoft side will go down fighting, simply because they are quite seriously insane when compared to the standard of sanity set by judges and juries and normal people. In this sense they don't know what's good for them because they will not entertain the idea that they might have done anything wrong: when the leadership of a company is that strong and that determined to stick with a course of action, they may decide that no judge is qualified to pass judgement on them. They're being asked to accept as fact that they've done many harmful things, and it may be a lot to ask to expect these people to admit they've done wrong. Don't always assume the MS leadership are perfectly sane rationalists. They are considerably more passionate and fanatical than that.
  • I think Petreley has an interesting suggestion in his Nov 15th InfoWorld column [].

    He argues that just taking away the API isn't enough and concludes that the "only workable solution he can think of" would be to make it illegal for Microsoft to produce Windows at all and give it to a non-profit standards committee which would maintain it.

    While he doesn't specifically mention releasing the source to the general public, I think that unless you're going to GPL it or force them to re-release it with each GA release of Windows, Microsoft (already having a development staff familiar with the umpteen million lines of Windows code (95/98/NT/CE/2K)) would probably find some way to gain the upper hand again or at least change the code often enough to keep people one step behind. It would take at least a couple of months or longer for people to be able to figure out all of the Windows source code and Microsoft could use that time to its advantage.

    Some things they might do:

    Release the source after running it through an obfuscator, with no make/project files, all the files renamed so you can't tell what type it is by the name, and all files in one directory (technically, they did release it, but it is less than usable).

    If they only have to release the current code and not updates, they'd put a ton of people on doing updates and after a couple of years, the released code wouldn't have all of the new features and most people (and OEMs) might migrate to the newer proprietary platform, because they'd code all their apps and development tools to take advantage of the new features. Initially the playing field would be leveled, but with MS's massive resources, they'd be hard to keep up with (when properly motivated they can move relatively quickly (eg. IE)).

    Similarly, they could code a new OS that is "Windows compatible" but call it "Screen Door" and then roll all new development onto "Screen Door" until Windows is obsolete. They'd have to release updates to the Windows code (or not), but not to the new code.

    Whatever they do, it's going to have to be very carefully worded so that MS's lawyer squad doesn't find a loophole.

  • NT is theoretically posix compliant.

    So? That's nothing.

    OS400 and MVS are posix compliant. For appropritate values of posix compliant.

    Ah, there's the rub.

    Kind of like NT is secure by the Orange book. For specific installations of NT3.51, on specific boxes without removable magnetic media, and without network connections.

  • Microsoft is clearly in trouble?

    I can't really agree with that.


    Because for all the posturing that we are making saying that FOF is the first step in the end of MS there are NO signs that the industry/country is even beginning to take that step.

    Related to the FOF you should ask the following questions:

    - Did MSs stock price fall?

    No, the small $5 fluctuation over the last week is fairly normal IMO. This could be as much due to continuing and the probably perpetual 2K delays as well as Y2K concerns as much as the FOF.

    - Did investors question the companies practices?

    For the most part no. No one changed their recommendations on the stock either.

    - Is breakup likely?

    Les and less so. Over the last two weeks a LOT of people said MS was going to be broken up with little thought being given as to HOW to do it or if it was the BEST solution. (See Ellison and McNealy @ Comdex.) This is growing more and more unlikely now from what I have been reading. Mainly due to problems in HOW to do it. And the source code being auctioned or made public? Forget it. There is too much 3rd party licensed code in Windows, figuring it all out and who gets what and and how much $$$ would be a nightmare. I honestly think that will be the least likely thing. I'd look for other remedies such as flat Windows pricing to all OEMs, a hefty fee, spin off of smaller parts of the company and such. (i.e. MSN)

    And not related to the FOF more to Linux:

    Are major corporations changing their purchasing practices or considering doing so?

    For the most part no.

    - Do the people who cut the checks/make the decisions to buy the software (MBA type people) dislike MS and do they know what Linux is?

    - As a IS major @ a business school I can say no. Business people LOVE MS, I can't count the number of people I hear at school saying they want to go work for them. Although we may not respect Bill as a technical individual business people respect him immensely as a manager. As for Linux most business people don't understand what Linux is. They want to know what company makes it. I can't recall the number of times I was asked: "I heard about this really hot IPO called RedHat. I heard they MAKE an OS called Linux. What can you tell me about it?". Try to explain open source and their head explodes. Business people don't get it and neither do upper level managers, until they do Linux is going to have problems getting into many markets.

    We shouldn't rely on the FOF to begin the fall of / break up of MS. To do so would be foolish. I for one will go under the assumption that NOTHING is going to change. Thats safer.
  • But they had a powerful reason to settle even before the findings were issued, because of the uncertainty surrounding what the judge was going to do, what effect his decision would have on their stock price, etc.
  • by bugg ( 65930 )
    isn't that a fairly obscure carvey reference?
    Everyone thinks your crazy.

    That, and shes a... choppin' broccillli!
  • According to the Merc article just put up here [].
  • by Anonymous Coward
    "it is not the physical breakup that matters as much as the ability of an outside company to compete in your space"


    You already have the ability to compete (Opportunity) in Microsoft's space. If you want the consumer desktop OS prize, you are just going to have to build a better product (to consumers) than Windows.

    But do you have the ability to compete (Capability)? Can you organize a process and development organization that can quickly produce something that is easy to use, is as seamlessly integrated and consistent as products from single companies (Windows and MacOS), and which productizes to consumers emerging technologies as fast (Direct3D)?

    When will we see a single GUI for Linux that developers and consumers both can rally around?

    When will we see attention to the thousands of little polish issues and integrations that Windows and MacOS provide? (Why can't you just stick in a CD and install the software/play music?)

    Restraining or penalizing Microsoft will not magically impart a capability to create a competitive consumer platform but it will hold back the one platform that consumers have voted for with their feet.

    It is the greatest wish of Microsoft's competitors that the government throw whatever monkey-wrenches into the works as possible so they can --maybe-- catch up.

    This is obviously not your average /. opinion. I'm not in Microsoft's employ, I do own some of their stock, I run NT and Linux both. I'm trying to impart some heart-felt perspective and advice. If you want to respond to my ideas, great, but please spare me the thoughtless and useless label of astroturf.

  • There is a *lot* of preselection for graduate school--lefies just ain't gonna apply to Chicago, and those that think competition works aren't going to harvard . . .

    The legal school is really the same group; it's just the law & economics issues reaching the law. Toss the silly antitrust stuff that raises prices rather than lower it, don't do things that make absolutely no economic sense, etc. The emphasis on efficiency tends to make social wealth maximization (regardless of who gets the wealth) the policy goal in the law, but the big contribution is trying to make the cost explicit, rather than "this is nice and that isn't."

    What tends to be missing is the notion that economics can tell us what the choices are (the positive), it can't tell us what the best choice is (the normative). Like many of the schools from the left that it challenges, the more rabid elements of the chicago school tend to forget to keep the positive & normitive separate.

    What surprises me, though, is that I've never seen the left take their style of analysis and change the choice mechanism. The New Keynesian economics did exactly this: they took the models and tools of the New Classicals and the Monetarists, but changed the assumption that prices were flexible to the assumptions that prices were predetermined.

    The same thing could easily be done with the chicago-school thinking: It will cost $50M to save those beavers, but in the process we avoid another $20M of environmental damage, and gain access to scenery worth another $10M from peoples' willingness to pay to view it. Or the real winner: $50 Million to save the beavers, but this avoids $75 million in damage to farmlands from water runoff. The tools are there to make the choices explicit, but noone but the chicago school itself has used them.
  • The judge found that microsoft's attempt to divide the market with netscape happened. I'd give you a paragraph number, but I don't see where my copy with the yellow tags went. Given the finding that microsoft attempted to do so, I would expect it to make it into the conclusions of law.

    On the other hand, market division didn't happen: netscape refused. Nonetheless, this is still an attempt to monopolize.

    The remedies really won't be any difference: remedies aren't chosen by nature of the offense, but by what is necessary to solve the problem. However, for this particular threat, I think my proposal of horizontal divestiture is the best (though I seem to be in the minority as to whether it will work or not).

    hawk, esq.
  • Actually, I think Judge Jackson doesn't want to rule because a ruling could be appealed. Regardless of the final outcome of endless appeals, the only think he is certain of is that MS will not behave itself in the meantime.

    However, if MS can agree to "voluntary" mediation, the remedy will be immediate and won't be appealed.

    All the antitrust experts seem to agree that opening the MS source code can't be done by the court as it would constitute "taking" of property. The only way I can see MS opening their source (assuming that's even an effective solution) would be for them to agree to it voluntarily.
  • >I'm not a fan of the Chicago school of economics
    >(after Milton Friedman helped the Chilean
    >dictatorship screw its workers I'm certainly not
    >a fan of its biggest proponents),

    I'm not a chicago schooler, but I'll use their tools and analysis when appropriate. Hell, I'd use Marx's if I ever found an appropriate case, but I'm not holding my breath.

    But I'm not clear on your reference to Friedman & Chile. Is this the retirement plan? I'd swap th U.S. social security system for the Chilean system in a heartbeat [but I think it was post-dictator].

    {way offtopic, but quick summary: 10% of paycheck goes into a fund of the worker's choice [but only a few are approved by the government]. The gov't runs one of these funds. There is a minimum guaranteed pension; if your fund doesn't have enough at 65, the govt makes up the difference. If your fund reaches the size to buy an annuity for this pension at your current age, you can retire now. At 150% (?) of this amount, you can stop kicking in. Chilean's see a much better return on their SS dollars than today's workforce in the U.S. . . .}

    Anyway, you list excellent reasons why Posner is a perfect choice. I just hope you've switched to New Keynsianism after the utter failure and death of Keynesianism :)
  • >Judge Posner's views and politics are decidedly
    >pro-Microsoft in these facts. Judge Posner would
    >probably argue that there is no such thing as a
    >real "barrier to entry," the very fulcrum of >Judge Jackson's FOF.

    Mild correction: the chicago school will disagree (at least usually) about *capital* barriers to entry. They certainly acknowledge administrative barriers, and I was first taught about strategic barriers (such as microsoft imposes) by a rabid chicago-schooler.

    And I should toss it here somewhere (I should have put it on vlax's, but I hit the button early :), but the chicago school are not so much conservatives, but classic liberals. However, on these types of issues, conservatives & classic liberals usually agree--and when they don't, it's going to be the classic liberals bolting away from notions of protectingthe monopoly.
  • Given what people are saying about him, one would expect him to have a small amount of sympathy for MSFT's position, which may help him mediate between the Borg and the DOJ, in that he can connect with both.

    But, in many ways, isn't it true that his hands are tied due to the consent decree and findings of fact which basically all but ask that MSFT be tied up to the stake and burnt alive?

    So, given that, this may have been a wise choice.

  • Wow, its amazing how words can be twisted.

    I never said that UChicago was monolithic in its points of view (I went to UC Berkeley's Boalt Hall school of law and there was certainly no homogeny of viewpoints there).

    I never said Posner would automatically favor Microsoft. I said it was disturbing that of all the people in the world to be a mediator, Posner is a disturbing choice because of he and the Chicago school's point of view on Antitrust and government intervention in markets.

    And I never said he was stupid.
  • I wish I wrote this, and I'm an antitrust lawyer and professorof economics :) This really cuts to the issue.

    Just one comment:

    >[chicago shool] whose best-known "member" is
    >probably Robert Bork (not that Posner
    >and Bork are interchangable). But if MS had to
    >choose a mediator, Posner just might be
    > the person they'd most prefer.

    Especially since Netscape already hired Bork :)

    OK, two comments: Bork was a screaming leftist until he learned some economics. But the benefit to the consumer is what drives his legal/economic analysis.
  • perhaps you could come over and see how many times my lovely Netscape Navigator 4.7 has completely hung my XF/GNONE/E desktop with nothing more running than XMMS?

    there are times when i would *prefer* a BSOD.

    I would wager that 90% of slashdot readers are windows users, don't program, and have only seen screenshots of linux or maybe just installed RH once or twice. that's what makes me laugh through all this. thanks guys.

  • by Daffy Duck ( 17350 ) on Friday November 19, 1999 @02:13PM (#1517799) Homepage
    So what you're saying is that it's ok to commit crimes until you get caught, and then you just have to stop before a judge can sentence you.

    Not much incentive here to obey the law, is there?

    Check out this article [] on why MS almost certainly did break the law, and not the one everyone's arguing about.

  • The New York times reports [] that both sides agreed to the Posner appointment in chambers. That means they can't object later. The Washington Post also reports [] the interesting fact that Judge Jackson has appointed Harvard Prof. Larry Lessig, briefly a special master in the case, to "advise" him.

    Alas, neither report tell us what kind of mediation it will be. Presumably, though, not the sort where parties have to accept the mediator's decision. Apparently the order will be published on Monday.

    Having sitting judges accept appointments as mediators or arbitrators is common in the UK. It is very rare in the US, and probably would be unacceptable if the appointing authority were anyone other than another judge. It's certainly unorthodox.

    As for Posner, while something of a sceptic about regulation, his jurisprudential writing is strong on the obligation of judges to follow Congressional intent. Indeed, he even suggested (playfully?) in one writing that maybe judges should interpret statutes like the securities and anti-trust laws more expansively, because the Congresses that passed them [controlled by Democrats!] desired expansive constructions, but that laws passed by more recent Congresses [controlled by Republicans!] might be read narrowly due to the different tenor of modern Congresses...

    In person, Posner is very different from what you would expect from his energetic writing style. Quiet, almost sweet, very interesting, could be someone's favorite uncle or maybe grandfather. Lots of fun to have lunch with.

    A. Michael Froomkin [mailto],
    U. Miami School of Law,POB 248087
    Coral Gables, FL 33124,USA
  • If we believe that Microsoft must fall because it (never innovates|makes shit for products|rapes users|introduces security holes) then what is all the fuss?
    I for one believe that Microsoft would eventually fall through natural selection. But that doesn't mean we should let them make billions illegaly (if they are indeed conducting illegal activities) until the industry changes on its own.

    The case is proceeding to determine whether Microsoft took advantage of their position in the system, and whether consumers suffered harm as a result. There's no mention of whether the harm will be repaired on its own -- even if it is, the fact is MS hurt people in its attempts to dominate the marketplace. For that, they should be punished.

    It's not just about correcting a problem; the justice system does make provisions for deterrence, and in this case, retribution.

  • MS is the most dominant company invovled with computing today. But they're not necessarily well-liked by many of the people that frequent /.

    So we like to read about the case (which has been getting heavy coverage in major media outlets too, you know) and many of us like to cheer for the Government, seeing as how they represent everyone that is not actually MS.

    o/~ ...root, root, root for the home team, if they don't win it's a shame... o/~

  • by copito ( 1846 ) on Friday November 19, 1999 @05:07PM (#1517805)
    George Washington University Law Professor Bill Kovacic gave some analysis of the referral on NPR's All Things Considered. The Real Audio file is here [].

  • Very roughly, the difference between classic liberals and libertarians is that classic liberals regard government as a necessary evil to be strictly limited, while libertarians aren't so sure about (or deny) the "necessary" part of that.

    Libertarianism is pretty much classical liberalsim taken out to its logical extreme. Rejection of drug laws is one of the steps along the way.
  • by Tom Christiansen ( 54829 ) <> on Friday November 19, 1999 @05:13PM (#1517807) Homepage
    It is fascinating because nearly everyone (except Tom Christiansen apparently) uses or has used MS software and everyone (including Tom) has an opinion about it.
    My goodness! Has it really gotten that bad?

    [pause for brief spotchecks with hitherto untainted colleagues in the programming field]

    Nope, it's not just me. Whew. You had me scared for a minute.

    The Evil Empire does not make software for me, nor for the likes of me. As they have nothing for me, and I want nothing from them, this makes my untarnished condition remarkably simple. And pleasant.

    When people hear that a person, even a programmer of all people, can not only live but flourish and prosper and take daily pleasures in the joys of programming in a pristine world where the creeping shadow out of Redmond holds no power, they always remark longingly, "Boy, you sure are lucky." Perhaps, but I don't think of it that way. Luck is an accident. This is no accident.

    You make your own heaven, your own hell. It's true that you can never return to a state of MS-virginity any more than can a heroin addict return to that unblemished state of never having shot up, but he doesn't have to keep doing it, either. You can establish your own sanctuary, a Microsoft-free zone. I'm told that I emanate such a field (7th Level Unix Wizard Spell: Protection from Microsoft, 10-yard radius). This is because people's MS-crudola always likes to blow up when I'm around. Then again, my bets are it would have blown up if I hadn't been there, too. :-)

    You see, maintaining a certain, well, "purity of spirit" if you would, is really not so much a matter of luck, as it is one of will.


    Yes, brother, you too can "Just say no" to the Bill! The first step to recovery is to admit your addiction. :-) Become the master of your own destiny. Know what you want, and live life on your own terms. You'll be a lot happier.

    Maybe I lead an uncommon life. I don't know. I don't have television either, although my opposition there is significantly less vociferous. Heck, I just got back from a movie (at the cinema). But I can no more see myself turning to the Dark Side--or even being forcibly coerced into it by an imminently ex employer--than do I see myself becoming a TV ad shyster hawking hamburgers from MacDonalds (those who know me will know how truly impossible that would be).

    Not on my watch, Captain.

  • One Microsoft action which has hurt consumers is pushing around OEM's. With respect to Microsoft, an OEM may be considered a consumer, and reducing an OEM's choices directly reduces the choices of the end consumer. There are plenty of cases of Microsoft beating up on the OEM's mentioned in the FoF. That being the case, I don't expect Posner to fall for the "...but we haven't hurt the consumers" argument.
  • No precident to set?
    1) If WindowsNT/9x is forced to go Open Source The 5th amendment precident it sets is enormous. "nor shall private property be taken for public use, without just compensation" How do you set a dollar value on a product? The consensus on /. is that M$ products are shit, therefore worthless.
    2) Any computer related company which becomes successful and therefore makes sick amounts of money may be penalized.
    3) Providing software for free may get you in trouble if it gets too popular.

    Dont forget that the Constitution is there to regulate goverment NOT to regulate business. The only Business oriented passages I can find is from Article I, Section 8 "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes"
    Something like Texas taxing a product the comes from Louisana.(notice you dont pay sales tax on out of state mail-order purchases)
    "No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another". Doesnt apply either.
    It also prohibited slavery (Amendments XIII,XV).
    Regulation of the liquor industry was attempted (Amendment XVIII) and stopped (amendment XXI)
    You might do yourself some good by reading the Constitution.

    The Anti-Trust laws are there to protect the consumer. IMO, the consumers have not been hurt by Microsoft, it's competitors (Netscape,Sun) lost out. It's capitolism at work.
    Darwin would be proud.

  • by werdna ( 39029 ) on Friday November 19, 1999 @05:39PM (#1517811) Journal
    To understand why, one must understand the purpose of a mediation. In a mediation, the mediator serves as a facilitator to help the parties to find a settlement when, in fact, they each have minimum positions with which the other party can live. Very often, two adversarial parties are unable to break the rhythm of posturing and stating their strongest views, making it impossible to narrow the gap.

    A mediator typically takes each party aside, points out civilly what of their posturing is bullshit, reminds them civilly of the risks of proceeding and asks them confidentially to disclose their best position (to the extent they feel comfortable doing so). A really good mediator can help the parties to feel comfortable reducing their posturing so they can get down to real-life horsetrading and settle the damn dispute.

    Judge Posner's views and politics are decidedly pro-Microsoft in these facts. Judge Posner would probably argue that there is no such thing as a real "barrier to entry," the very fulcrum of Judge Jackson's FOF. But so what? This is precisely why he is the perfect choice.

    Judge Posner's views, whatever you may think of them, do not diminish his stature. He is the lion of antitrust law and jurisprudence (particularly given that Judge Bork has hung up his robes). He is also brilliant (though I don't agree with a great deal of his writings or analyis), and a remarkably fast and analytical thinker.

    In short, no one is going to bullshit him. He will have comebacks, regardless of who is trying to stake out their position. And the setting aside of bullshit is the fuel of mediation. Posner can deflate the theory of the government's position, when in caucus with the government, and he can destroy Microsoft's confidence in its position when in caucus with Microsoft. Why but Posner could really accomplish this in view of these findings of facts?

    The purpose of mediation is to achieve a settlement when it is possible (typically one with both parties holding their stomachs as they sign), or to declare an impasse with as little pain as possible.

    True, Posner gives Microsoft a sense of an "edge" going in. How do you think the government feels about the findings of facts? A "settlement session" where the government dictates terms may be satisfying for the egos of the government, but it will not achieve a settlement. Posner can balance things for the purposes of mediation, so that the horsetrading can happen -- if it can happen at all.
  • Ha ha ha ha ha ha ha ha ha ha ha ha ha hack..cough cough cough cough. Now that I'm done with that, tell me what exactly you mean by innovation. Most of their software have been alterations or blatant ripoffs of other people's work. Microsoft is a marketing genius, I will give them that. They've been able to sell their last two operating systems, despite being bugridden and unstable. Unfortunately, as much as I hate to admit, they will sadly continue to dominate the market. They have proven they can market anything and they made an operating system any moron can use. That's why Linux and the numerous other OS's will never make much ground, they haven't been dumbed down enough for the average computer user. Let's face it, the average leisure computer user is dumb.
  • The adminstrative costs of Chile's system are almost 30%, and payouts are still lower than in the early 70's - I'm not all sure they see a better return. Furthermore, you have to contribute a minimum amount to qualify for the minimum pension - many poorer workers are unable to do so. It was very damaging to those near retirement when it was put in place - they saw their returns cut dramatically by government fiat.

    Note that military pensions are not invested in this scheme.

    Actually, I was thinking more of the brutal suppression of the unions, who would never have stood for Pinochet's social security plan in a democracy. Friedman never hesitated to work for a dictator easily more brutal than many in the communist world. Chile's SS plan was imposed under the dictatorship, and satisfaction is not very high.

    At any rate, I'm not a religious Keynsian - although as far as I can tell the Chicago school, like Marxism, is long on promises but had been a disaster in implementation. Chile took nearly twenty years to return to it's 1971 standard of living, and elsewhere Chicago-style reforms have proven even more disasterous. Government intervention in the economy has still done vastly more for the developing world than laissez-faire.

    Keynes gets a lot of points for working out a system that actually worked at least some of the time. I know of no economist with comparable accomplishments.
  • Is Bork of the same background as Posner? Didn't Bork come down pretty hard on microsoft?
  • The Chicago school has little in common with, for example, the religious right, so I guess one could call them liberal after a fashion. Adding "classical" to it gives them an edge I'm unwilling to conceed - the Chicagoists aren't the free traders of classical liberalism any more than the Austrians are. Times change, and few schools of thought survive the centuries intact.

    Once upon a time, conservatives represented the power of landed aristocrats against the industrial aristocrats and the bourgoisie. Nowadays, not even the most conservaive politicians represent the landlords above the factory owners. Once upon a time (within living memory for some people) environmentalism was viewed as a conservative issue. Now it's almost exclusively a leftist one.

    My point is times change, and conservative is relative to local values. Twenty years ago, I would have called Posner a radical capitalist and on a pithy day a nihilist. :^) Today, most of his ideology is mainstream in US government (which only goes to show that it's probably wrong) so I feel justified calling him a conservative.
  • > But, in many ways, isn't it true that his hands are tied due to the consent decree and findings of fact

    IANAL, but my gut feeling is no, at least not directly. Since the parties to the consent decree were the DoJ and Microsoft, they can consent to modify it. As for the FoF, a settlement would neither have to address the entirety of the FoF, nor be limited to issues addressed in the FoF. The impact of the FoF would be indirect - giving Microsoft the incentive to settle, while providing the DoJ the backbone to not concede too much.
  • An OEM is a partner. We should be careful not to redefine terms for our own convenience. That doesn't work well in a court of law.
  • How nice of microsoft to decide to cover itself w/a an outside advisor. Nothing like putting on a good show for justice. Looks like good pr too. Maybe they should join the legal field instead of software. -
  • got to love the US Judicial System, although I can't help saying it funny ;) comes out like im drunk.

    BTW, Dana Carvey is god.

  • So will Posner be responsible for what is done to M$? Or will Jackson still have a say?
  • Is the advisor sort of an arbitrator or is he only giving out recommendations to both sides?
    Please visit [] - You can donate Food and Medicine for FREE to Save Children. The donation is fully paid by corporate sponsors. There is no charge to you. You can make one free donation a day. This site is FOR REAL.
  • This is voluntary mediation, to see if it looks like the two sides can come to some agreement on a remedy. All I can say is "Not bloody likely". Also, can this be taken as an admission of guilt by MSFT?
  • between Microsoft reps/lawyers and ??? Someone from DOJ? Has the DoJ ever said what remedy they would like to see?
  • Richard Posner is the leading advocate of the Chicago school of Economics, which, to boil it down somewhat simplisticly, believes that the market should not be interfered with at all by government. Antitrust is an area of law which should almost entirely be elminated. They believe that the open market will correct monopolistic problems.

    This is a really really disturbing turn of events.. I'm glad Posner is just a mediator.
  • I want to know this guy's background. I want to know how he has ruled in other even unrelated issues. If this guy is good, and he does his job well, this could mean a QUICK resolution! If you have been watching Bill Gates' comments, he is willing to even consider a break up if resolved out of court (at least, he isn't specificly saying he WON'T consider it). This could mean the trial being over in a matter of months instead of appeals lasting for a matter of years.
  • OK, this is horrendously off-topic, and please moderate this down to the level you see fit, but I've got to ask. On the Microsoft story icon, what is that thing coming out of Bill Gates's head? I've been trying to figure this one out for the last three months, and I'm at a loss. Can anyone help me out?

  • by Signal 11 ( 7608 )
    You know, the last time the DOJ appointed a special-anything on a case this size... it resulted in a massive embarassment of the entire country, and a man caught with his pants down.

    Now, we already have massive embarassment, and after that incident at comdex...

  • by antizeus ( 47491 )
    Apparently Posner is there to keep both sides from whipping out their knives and lunging at the throats of the other side. Also his experience as a judge will allow him to contribute some valuable insights into the negotiations. Ultimately it is up to Jackson to decide what happens in the penalty portion of the trial, subject to appeal of course.

  • by Anonymous Coward
    ...if the Windows source code was released? Would we see other operating systems put the bad and good stuff in? I would personally like to see a better windows emulator, that might accomplish such a thing. Could also get better USB and PnP support, maybe?? Just wondering on what everyone else thinks about this.
  • MS cannot be upset about this appointment.

    Does this mean we need a meta-mediator? :)

  • A laser type-deal. Standard on Star Trek: The Next Generation and later model borg... kind hard to pick up if you don't watch star trek, thou, I admit.

  • The Hon. Posner is a strange one as judges go: I'm not sure he fit's in any of the three political judicial camps mentioned in Richard Hawkin's reply to question #5 in the Ask Slashdot posted today. I remember the flap over his advocacy for legalizing marijuana [].

    One tenet of his is "The incidence of regulation appears to be unrelated to the incidence of the observed characteristics of natural monopoly". His view seems to be that regulation, government intervention to ensure precious commodities are fairly provided, is arbitrarily applied and benefit the regulated company. The subsidy becomes a profit center and encourages companies to align themselves toward lowest organizational costs. It results in an inefficiency used to lobby for more subsidies---a welfare case. Because this situation with utilities companies and MSFT doesn't compare, I'm not sure we can say where his sympathies point.

    I am sure he's a great mind and is certainly a top authority on the subject having written the book Natural monopoly and its regulation and articles 'Theories of Economic Regulation' and 'Taxation by Regulation'(both from Bell Journal of Economics and Management Science). In fact, he's incredibly prolific . . . writes a book or two annually while serving as a Chief Judge of the U.S. Court of Appeals and senior lecturer at Chicago Law.

  • Heh. There is no precident to be set. Computer businesses are businesses. Businesses are subject to regulation by the government. It even says so in the constitution.

    MS is not being tried b/c of some particular product or feature. It's being tried b/c it broke a law relating to how businesses are permitted to compete. If they were in any other field they'd still be getting tried.

    Computing is a red herring.
  • I don't know; I kinda think that Microsoft needs somebody like Posner to mediate for them.

    Given the basic ineptitude in their relationship with the DOJ before the trial and the court during the trial, they were their own worst enemy. If there are any issues of import here at all (the specter of government oversight being one), I would much rather someone like Posner argue. He has a better shot at doing so intelligently than the way Microsoft has been pressing it.
  • by vlax ( 1809 ) on Friday November 19, 1999 @02:27PM (#1517840)
    I'm not a fan of the Chicago school of economics (after Milton Friedman helped the Chilean dictatorship screw its workers I'm certainly not a fan of its biggest proponents), but Posner is definitely the most qualified person Judge Jackson could have chosen.

    Posner is most likely to understand what is in the findings of fact and knows that a slap-on-the-hands consent order is not going to be good enough, regardless of his ideology. Because he is well-known as a conservative judge, the libertarian fringe in the business community is unlikely to be able to claim big government is unjustly interfering with Microsoft.

    This guy has it together enough to help punish Microsoft, and has a reputation that makes him unimpeachable if and when he does. This is one of those "only Nixon could have gone to China" cases where, despite being an unrepentant liberal and a soft Keynesian, I agree that the conservative is the right choice.

    Microsoft has to be scared. They have no way of knowing what kind of punishment the court will mete out. The Justice Department has the same problem, but has political problems on top of that - 2000 is an election year and no one wants to make potential big business campaign contributors unhappy. Both have a vested interest in negociating something. In arbitration, they have some control over the outcome - in a court, no one knows.

    Of course, both sides are still far apart on what ought to be done. Microsoft is adamant that they should be able to put anything they want in Windows, and that they won't permit disclosure of the source in any way. It's hard to see what the DOJ could ask for outside of such solutions, except perhaps actually breaking up the company.

    I agree with Dr Hawkins below - the odds of settlement have improved. How much depends on how scared Microsoft is. The DOJ can't back down now - if there is no settlement, they will let the cards fall where they may. Any politician who is going to be hosed by the Microsoft case already has been.
  • Embrace and Extend. You will be assimilated!
  • For a review of Judge Posner as a judge, you can take a look at That review is somewhat dated -- he is now the chief judge of the Seventh Circuit Court of Appeals.

    Apart from his judicial opinions, he is one of the most prolific and influential legal writers in American legal history. This gives him tremendous stature and credibility. If anyone can save this case from a multi-year legal wrangle in appeals, it should be Judge Posner.

  • Replying to your points:
    1) As was noted already in today's earlier MS article, it is highly unlikely that MS will be forced to open their source. Additionally, it doesn't really address the problem. I personally suspect that MS will be required to drastically change their licensing but that that's about it.
    2)Any company at all that makes sick amounts of money can only be penalized the same way everyone else is: taxes. But if you make this money by engaging in illegal actions (e.g. MS, the Mafia, selling stolen goods) then you're in a whole different boat. Are you arguing that well-paid hit men are accused of having too much money? That's _not_ the point, though tax evasion on illegal income is useful in convicting them.
    3)Again, this is only going to get you in trouble if it's done in an illegal manner. If I give you IE for free, I'm breaking the law, cause it's not mine to give. If MS forces you to give IE away for free, they are also breaking the law.

    And the Constitution, while not directly IIRC regulating commerce, gives Congress the power to do so, and you're forgetting about the elastic clause anyway.

    The argument against illegal monopolies is basically that, AFAIK (IANAL) the lack of competition - particularly if the only reason there's no competition is due to predatory business practices and not real consumer choice - harms consumers.

    Were MS the only OS provider in the world (they'd like to be) and then entered a seperate market by exerting the power of a lawfully gained OS monopoly (like saying "When you buy Windows you have to buy Office as well, or you get nothing") this is a problem. Many consumers don't want Office, but they get it anyway. Competitors have a harder time and the anti-Office consumers are harmed when the products they do use go away.

    Additionally, without competition stagnation rapidly sets in as has been shown in virtually every case of a monopoly. The ATT case is a good example of this. Telcos are flourishing now. They weren't 15 years ago. Prevent MS from breaking the law and squishing valuable competition before it can start and you'll soon see a flourishing marketplace. If MS were a person, he'd be the sort that likes cutting down saplings because someday they might ruin his view.

  • Splitting them up seems to be the only reasonable way to go. To me, decoupling the base "OS" (I'd rather say "execution environment", because in the normal world the GUI is not an integral part of the system) from applications is essential. Also the online business should be a separate thing. Their growing hardware department (see recent posts regarding their X-Box) should also be an isolated entity. So ultimately what I would like to see is this many baby-bills:

    - base OS.
    - GUI.
    - business applications.
    - online stuff (IE, MSN).
    - OLTP business center.
    - hardware business.
    - games and educational department (this would include things like Encarta).

    -- I think, therefore I am. Descartes.
  • Though I have to say I'd like to see the developers of WINE get ahold of that, I doubt it would happen. If you haven't already, you might want to check out a few /. stories ago where they have the Q&A session with those lawyer people =] .. A few questions asked talked about the source for Windows being released, and most, if not all, replies were stating that it would not happen. Something along the lines of the judge not being able to take away the IP of MS. I agree with the fact that they shouldn't be able to lose their code, but maybe release code for other portions (APIs for eg) that would still benifit other developers. Also maybe if they were somehow regulated (I have no idea how that would work, and I will never claim to be able to dictate law, etc). Anyway...My two cents worth.
  • I have this feeling that Judge Thomas P. Jackson must have read the series of articles in Business Week magazine about the US v. Microsoft case.

    Business Week states a very good case that any sort of structural breakup has some very serious downsides, which in turn will cause chaos in the computer industry (and IMHO hand the computer industry to a someone like the Japanese on a platinum platter). They cite the unfortunate experience of the AT&T breakup as a good example.

    Business Week wants this simple solution: open up the source information (at least the full WIN32 API) to anyone who wants it. They imply that an ending to all current Microsoft ISV/IHV contracts is in order, too.

    It appears that the resolution to this case will be in three parts:

    1. Complete disclosure to the entire WIN32 API library.

    2. Freedom of any ISV/IHV to make changes to the startup of Windows 98/2000.

    3. The ending of all current Microsoft ISV/IHV contracts. All future computer sales will have to count the operating system as a separate cost item.

    This three-part solution will satisfy the majority of people, because Microsoft will be left more or less intact, but now will no longer have the ISV/IHV contracts that will keep out competitors.
  • I think it's strategic -- any settlement coming from a Posner-mediated negotiation will be seen as bullet-proof should one side or the other fail to live up to it. In other words, if MS transgresses the agreement no court in the land will listen to "we didn't understand" or "but it was unfair anyway". And if the mediation fails, MS can't blame the mediator, as if anything the deck is stacked in their favor. Finally, Posner will probably have to 1) not serve on an appeals court and 2) testify on appeal (issue a friend-of-the-court breif, at least) if the negotiations break down and this goes to appeal.
  • I see the appointing of a mediator an act of giving MS enough rope to hang itself with. The judge can now say if they don't reach a bargan that he attempted to try and get both parties to work out their differences, and now it's time to throw the book at MS, not punches pulled.

    MS should settle here, otherwise things will go very badly for them, IMOHO, of course.


    ...not a student of law, but someone with a lot of experience in mediation & conflict resolution.
  • I am impressed by the Judge's persistence in trying to get the parties to settle (which in this case is mostly about getting Microsoft to face reality). Many of the best outcomes require Microsoft's good-faith cooperation, which to date has been AWOL in the various rounds of settlement talks.

    Hawk, have you taken a look at the potential charge of market division? Do you consider it supportable by the FoF, and if so, do you expect the DOJ to list it as part of their proposed Conclusions of Law? What sort of remedies are normally applied to market division offenses?
  • Does anyone else get that sinking feeling that this is just a first step to something nauseating like a Happy Happy Joy Joy joint press conference by Justice and MS declaring that MS is really,really sorry for that monopoly silliness and they've learned their lesson but they've come out a better company through the painful ordeal. Hugs all around. End news conference.

    Please don't fuck this Justice.

    Todd Stewart
  • Bork & Posner are the two primary architects of modern antitrust law. To the best of my knowledge, though, Posner didn't start out on the far left as Bork did.

    However, Bork has been retained by netscape to help with its issues with microsoft, particularly alleged predatory behavior--which is odd, since bork has insisted for a long time that predatory behavior makes no sense from the monopolists standpoint . . .
  • I am surprised that you were misinterpreted.
    The term "chicago school" is a generic label for free markets economic - as have already been described.

    I am in full agreement that this is disturbing. Just disturbing - not an emergency.

    I spoke with my antitrust professor this evening -a self described fan of "post-chicago" school of economic thought. Basically that means that he is opposed to pure market solutions, a more moderate and reasonable approach. He merely expressed his reservations that Posner leans the wrong way, but no concern as to his brains. Maybe I can get him to write a few words for slashdot on this.

  • NYT now has a newer article [] with more info, including Posner "has no authority to force the parties to reach a settlement, or to impose one" and the 7th Circuit mediation rules (for non-judge mediators, I'd bet), rules which won't apply formally, but might be influential, state that "the mediator does not tell the district court judge trying the case what occurred during the talks. That way, if the talks fail because of one party or another, it will not prejudice the judge as he prepares his verdict."

    A. Michael Froomkin [mailto],
    U. Miami School of Law,POB 248087
    Coral Gables, FL 33124,USA
  • > This is the case of importance in technology today, or at least it appears to be.

    Not to disagree with you, but rather to put a slightly different spin on it:

    In a way this case is about Micorsoft and its business habits. But in another way this case is about whether the Information Age is going to let any one company tie up the critical resources, such as protocols and document formats, in such a manner as to be able to control the planet's computational and communications infrastructure and exploit it to private ends.

    To some extent this question is orthogonal to whether Microsoft deserves to be "spanked".

    It's October 6th. Where's W2K? Over the horizon again, eh?
  • You make your own heaven, your own hell. It's true that you can never return to a state of MS-virginity any more than can a heroin addict return to that unblemished state of never having shot up,

    But, was years ago; surely you must have pity? I was young and foolish, and a Macintosh was involved, for heavens sake. There must be some way, right?

    I mean, is there any chance you might start selling indulgences, or trading them for code contributions to a favored project or something? It seems only fair...

  • IANAL, (sometimes I think that there are too many lawyers, other times, I wish one would pass by so I could pick his brain) but IF the case is settled out of court BEFORE a verdict is entered, the entire case dissappears, Findings and all. It would look to the record books just as if the the case was settled out of court before the trial began.

    Again, I don't recommend that anyone take this as fact.

  • An OEM is a partner. We should be careful not to redefine terms for our own convenience. That doesn't work well in a court of law.

    I doubt that an OEM is a partner for antitrust purposes and I doubt that they would say so either.

    We have two ways to look at this:

    1. The OEMs have conspired as partners with Microsoft to keep customers from getting other operating systems on their desktop PCs; or
    2. The OEMs are victims of Microsoft's illegally anticompetitive behavior because MSFT would not do business with them if they did not fall into line.
    When the first private lawsuit includes them all, what do you think the OEMs will argue?
  • IF the case is settled out of court BEFORE a verdict is entered, the entire case dissappears, Findings and all. It would look to the record books just as if the the case was settled out of court before the trial began.

    I would expect the state Attorneys General to want the FoF to be admissible for all civil suits. Certainly everything that had been brought into court will be fair game and public record. Do you really think that Microsoft will want to see how many judges will put up with their contemptuous behavior before throwing the lot of them into jail for contempt of court? Do you think Microsoft wants to get sanctioned for not producing the same emails they produced the last time? These facts are out there and I don't think Microsoft can make them go away.

  • by alexhmit01 ( 104757 ) on Friday November 19, 1999 @01:10PM (#1517861)
    This is merely an attempt to reach a settlement. Microsoft is clearly in trouble because of the FoF, and they don't want to have court imposed sanctions. It would likely be appealed straight to the Supreme Court, which would probably not overturn the decision unless the Judge ruled something REALLY inane.

    Mediation can keep the parties in perspective during negotiations. The Judge is serving in `private capacity' but I don't know what that means. I'm assuming that his time is paid by the parties involved, but who really knows.

    I understand that after the case is closed, the FoF is considered admissable evidence in all the private anti-trust cases. If Microsoft settles, is the FoF still binding, or does the case disappear? I'm guessing the latter, which is why MS is looking to settle instead of fight. Even if the appeal wins them points from the Conclusions of Law (unlikely), they will most likely be economically ruining by the private civil anti-trust cases. Don't think so? I think that they can get up to triple damages... want to see what a few billion in legal costs do to Microsoft's cash flow? Realize that market capitalization isn't cash onhand, merely their valuations. A hit of $10-15 billion in cash would devastate Microsoft... and that would be on top of a massive penalty for the anti-trust stuff.

    Because Microsoft acts like a monopolist, they are EXTREMELY profitable. However, even split up, Microsoft can make HUGE profits as the Baby Bills. However, if they are sacked with HUGE legal fees, class action lawsuits for over-pricing Win98, and other sanctions, Microsoft could be devastated. Now, neither the DOJ or Microsoft have any reason to see MS destroyed. The DOJ needs to restore competition in the marketplace, not attack MS...

  • First, IANAL, but it seems to me that the FoF is now a public legal document. It should be able to be used in any subsequent civil case, even if the two sides settle. I would think (and hope) that the DOJ wouldn't even have the power to agree to withdraw the FoF. Of course, a settlement might preclude being found guilty by Judge Jackson, which would have been even more damaging in other cases.
  • by hawk ( 1151 ) <> on Friday November 19, 1999 @01:26PM (#1517863) Journal

    I'm intrigued. I had been figuring that there is close to no chance of settlement. Now, I don't know.

    A mediator doesn't impose a solution, but tries to bring the parties together. Someone with experience in the particular area can be useful, and may be more able to get them to see eye to eye.

    And thus the interest in Posner. Judge Posner is the second leading authority on antitrust law today (behind Bork). You can quote Posner's writing to argue that Supreme Court precedent is wrong--and the odds will be on your side. If there's any one person left in the country that can get it through Microsoft's head that they didn't win, this is the man--Bork has already been hired by Netscape.

    I'd still put odds against a settlement happening, but they just changed.

    hawk, esq.
  • Don't appologise. Just don't do it. If you want to sell sompthing this is not the time or place.
  • by Parity ( 12797 ) on Friday November 19, 1999 @01:31PM (#1517865)
    MS has been doing a lot of posturing and spin-control, but the whole purpose of Jackson's releasing the findings-of-fact ahead of time was to announce to MS 'settle or be hit with a sledgehammer.' Jackson's been pushing the parties to settle all along, but nothing's come of it.

    Of course, MS might -not- settle. They're continuing to reap profits from their monopoly position as they draw out the court case. (They have cooled off a -little- but they're still pretty aggressive.) Well. I'm all in favour of MS not settling. I'd be perfectly happy to see them broken into smithreens and strangled with restraints. If that happened, Linux is poised to 'take over' and whether it's linux or not, a world of posix-compliant target machines is what I want to code for. ;) Okay, I've tangented into fantasy. If MS knows what's good for them, they'll settle, and Windows will have a long lifespan yet.

  • Heh, and don't forget their greatest achievement yet : the Blue Screen Of Innovation (TM) (C).
  • A judge a `leading advocate of the Chicago school of Economics'? Why do you say that? I would have an expected a member of the school to hold that title...
  • by Magritte ( 116523 ) on Friday November 19, 1999 @02:36PM (#1517868)
    Hmm, so the question is, would it really be better if Microsoft was broken up into smaller companies?

    In my job I spend a great deal of my time dealing with phone companies and I would be hard pressed to say that any of the baby bells are any better than ma bell used to be.

    Did they lose power when they were split up? I suppose they did, but it didn't improve their service. How much power did they really lose anyway.

    Is there a way to split Microsoft up that is both sensible and removes some of the awesome power they currently wield over the market?

    Personally, my political beliefs make me feel that the behavior of Microsoft should be handled by the consumer, not by the government. I don't want the government making decisions for me, how can I in good conscious ask it to make decisions for a company?

    So readers, here's a challenge: Microsoft has finally and for the last time been ruled a monopoly. You've been asked to handle it, what do you do with Microsoft (within the bounds of the law and common sense) to prevent their monopolistic behavior. If you split them up, how, what kind of companies do you create, handling what products.


  • whaddy mean by "posix compliant".

    NT is theoretically "posix compliant".

    I wish I had a nickel for every time someone said "Information wants to be free".
  • by konstant ( 63560 ) on Friday November 19, 1999 @01:36PM (#1517870)
    Most interesting of all is the comment (almost a footnote) made in the CNN reporting that contrasts directly with what today's "Antitrust Experts" appeared to imply.

    Namely, that the Findings of Fact have no legal meaning:

    A settlement also could have more far-reaching results in Microsoft's favor. If Microsoft and the government reach a settlement, Jackson's finding of monopoly power would never become final, and firms seeking to sue the company would have to go through the difficult task of proving its monopoly position.

    I have heard something very similar from a lawyer friend who is sympathetic to Microsoft. Contrary to the prevailing assumptions in the media I consume (slashdot, theregister, etc) apparently a Judge's Findings of Fact set no legal precedent and are not admissable in other court cases. The FoF do not have any legal ramifications until they are incorporated into Jackson's Findings of Law, or final ruling.

    This is interesting because, although it seems unlikely that an appellate court would tamper with Jackson's FoF, modifying elements of a legal ruling that contained facts is precisely what an appellate court is supposed to do. If this is the case, then the Findings of Fact cannot be said to be entirely unassailable. An interesting possibility.

    Somewhat tangentially, I noted with surprise that some of the Hon. Jackson's Findings essentially pass edicts about various other cases Microsoft is currently litigating. For example, Jackson finds it to be a "Fact" that Microsoft polluted Java. It seems peculiar to me that this Judge could make a sweeping finding such as that, considering that an entire secondary case is currently pending on that matter and presumably entails greater depth of evidence and witness testimony. I wonder what would happen if Jackson were to incorporate the Java-pollution "Fact" in his legal findings, and then Sun were subsequently to lose its battle against Microsoft in that trial. Which "Fact" would legally prevail?

  • I think opening up the source code to Windows would just rule! I mean, who COULDN'T resist a chance to poke and prod and mess around with it? I tell you, if that day comes, I'll be getting me a copy and modify the hell out of it, just to see what would happen. Besides, if Microsoft actually opens itself up to an open source community, imagine all the bugs and problems they'd have fixed, as well as happier people because they've got a more stable OS going!

    If you all want to know what kind of crack I'm on, sorry, I don't share.
  • >perhaps you could come over and see how many times my lovely Netscape Navigator 4.7 has completely hung my XF/GNONE/E desktop with nothing more running than XMMS?

    Nothing lovely about Nav 4.7. I have the a similar setup to you and I keep an Eterm with "rm ~/.netscape/lock" as the last command in its history ready at all times :\

    I've never had it hang the desktop though. It's usually just spinning at 100% cpu - nothing kill -9 can't fix.

    >btw: I would wager that 90% of slashdot readers are windows users,

    I think you'd lose the wager, but it'd make an interesting poll.

    BTW, lighten up - my other post was a joke, and I think the post it was in response to was too.

  • Is it possible for the US Government and Microsoft to come together on this? I wonder whether it's not just an attempt at (1) giving the public a while to calm down and (2) affording Microsoft the opportunity to operate in its standard mode for a longer period. Every day Microsoft puts off a major revamping of their processes, if that's what's in store, means several million dollars a day and a company a week in their hoard.
  • This seems to be a case where the facts are clear, the crime is obvious, but nobody has a very good idea what kind of punishment could work out. I am beginning to wonder if that is Jackson's position here. Jackson avoided complaining about contempt of court when he could have thrown it down for perjury. He separated the findings of fact from the findings of law. He wrote the first as a bullet-proof document that could nail Microsoft. He keeps on asking for a settlement. And now he has appointed as a mediator someone whose advice cannot lightly be rejected who - in a reasonable world - might actually have a chance of settling this.

    Doesn't it look like he is doing his level best to avoid having the judgement that is handed down be his? (And therefore avoid responsibility if it is ineffective or too strong.)

  • Right, but the UC looks rather like a citadel of the school of thought: there was a rather notorious survey done a couple of years ago that showed how closely the opinions of those finishing various economics graduate school fitted profiles of the schools opinions. UC and Harvard were outliers at opposite ends of the spectrum.

    I am familiar with the economic school, but not at all with the legal school. Are they followers of public choice theory?

  • by hawk ( 1151 ) <> on Friday November 19, 1999 @01:39PM (#1517880) Journal
    Yes, you called it simplified, but you oversimplified to the point of falsification.

    Posner is a leading member of the Chicago School, the body of thought from the Law School and Economics Department at the University of Chicago that are very big on competition--and the econ department which picked up four *consecutive* nobel prices recently.

    The Chicago school does *not* claim that the open market corrects all monopolistic problems. Read Bork and *gasp* Posner and you'll see this. The change in law as the Bork/Posner view replaced the old antitrust law is that it is the effect on consumers, and not competitors, that matters. Bork explicitly defines competition as whatever benefits consumers--if mergers that will leave two firms instead of ten will lower prices, the merger is pro-competitive.

    Posner doesn't necessarily go that far, but expects antitrust law to make economic sense.

    And the extreme wing of the chicago school believes that in some cases, one firm is enough for competitive behavior to hold, since other firms *could* enter.

    But the catch (which you'll find in Posner's writings) is that competition has to be working. If competition is possible, and is alive in the industry in question, they expect it to make use of monopoly power impossible. They don't see it so much as a *cure*, but as a way of determining whether or not a monopoly couldhurt consumers.

    They most certainly do not think (as a group) that antitrust law should be eliminated (Posner's textbook on the subject is about five feet behind me :), but that the portions which harmed consumers (such as Brown shoe, which protected us from low prices on quality goods) should be tossed. This means tossing the "Big is Bad" principle, and actually looking at what's happening.

    hawk, esq.
  • If Judge Jackson has to decide on the penalty for the case, then the FoF become fact, and as pointed out by today's Q&A, will be *very very* hard for anyone to dispute. Once they are fact, then the door opens for Sun and any other company with sufficient claim against MS's monopoly, which can use the FoF for their case.

    If MS and DOJ settle, then the FoF are basically cannon fodder; future lawsuits against MS may attempt to bring the FoF up, but MS can now dispute the FoF, so it doesn't have the same power.

    This is why nearly every legal expert predicts that MS will settle, because it makes all current and pending lawsuits a bit easier for them to win. This is also why rumors abound about the strictness of the settlement that the DOJ wants, such that if the settlement goes through, MS will have very little possiblity to rebuild and/or abuse the monopoly.

    IANAL, of course.

  • by konstant ( 63560 ) on Friday November 19, 1999 @01:48PM (#1517882)
    Richard Posner is the leading advocate of the Chicago school of Economics, which, to boil it down somewhat simplisticly, believes that the market should not be interfered with at all by government. Antitrust is an area of law which should almost entirely be elminated. They believe that the open market will correct monopolistic problems.

    Not to be snide and throw back people's earlier comments in their faces or anything, but I would like to point out that many slashdotters appear to side with the views you are attributing to Posner here. While defenders of Microsoft seem to be rare, the viewpoint that Microsoft's demise is "inevitable" seems fairly prevalent.

    I have encountered more than one comment to the effect that "the DoJ should hurry up: Microsoft won't be a monopoly ten years from now".

    Please could we consider the possibility that this position is hypocritical? Is the purpose of government intervention to remedy a trust, or is it to punish Bill Gates, a man many people here evidently wish they could strip nude and whip through the muddy streets. If we believe that Microsoft must fall because it (never innovates|makes shit for products|rapes users|introduces security holes) then what is all the fuss?

    It appears to me that all the arguments for the notion that Microsoft's time is short imply that users will ultimately choose software freedom over software convenience. I wonder whether that is true.

    Punishment as a corrective makes sense, but I for one, am not into punishing people or companies merely for the sake of punishing them.

  • with true sarcasm.
  • by hawk ( 1151 ) <> on Friday November 19, 1999 @01:51PM (#1517884) Journal
    >The FoF do not have any legal ramifications until
    >they are incorporated
    >into Jackson's Findings of Law, or final ruling.

    That's entirely consistent with what we wrote. In fact, we would have written that, had we been presented the question. However, assuming we get to conclusions of law, these findings give us a very good idea what those conclusions will be.

    >This is interesting because, although it seems
    >unlikely that an appellate court would
    >tamper with Jackson's FoF, modifying elements of
    >a legal ruling that contained facts is
    > precisely what an appellate court is supposed to
    >do. If this is the case, then the Findings of
    > Fact cannot be said to be entirely unassailable.
    >An interesting possibility.

    This doesn't follow. The conclusions of law will be based on the findings of fact, and can be easily modified. However, the findings of fact would remain untouched in any such change; the appellate court would not change them when making new rulings.

    > I noted with surprise that some of the Hon.
    >Jackson's Findings essentially pass edicts about >various other cases Microsoft is currently

    Nothing unusual here. That other parties have litigation pending in those matters in no way prevents the government from bringing them up in this case, which it did.

    >I wonder what would happen if Jackson were to
    >incorporate the Java-pollution "Fact" in his
    >legal findings, and then Sun were
    >subsequently to lose its battle against Microsoft
    >in that trial. Which "Fact" would legally
    > prevail?

    In this case, it would be as litigated in this case. Also, the private litigation cannot be used
    as proof in other cases. While different rules apply to government antitrust cases, those who were not parties to litigation are not bound by its factual findings.
  • by Rilke ( 12096 ) on Friday November 19, 1999 @01:51PM (#1517885)
    Posner is generally considered one of the leaders of the Chicago "Law and Economics" school of thinking, whose best-known "member" is probably Robert Bork (not that Posner and Bork are interchangable). But if MS had to choose a mediator, Posner just might be the person they'd most prefer.

    In "Natural Monopoly and its Regulation", he came out pretty strongly against regulating monopolies, saying basically that the cure (i.e., regulation) was worse than the disease.

    One of the standard tests of monopoly comes from one of Posner's decisions (Olympia Leasing vs. Western Union, though, where he says that illegal actions being when a company...

    "Retaliates against customers who have the ternerity to compete with him by cutting such customers order to discourage competition."

    This speaks pretty directly to the IBM portion of the FoF. But a final quote from Olympia Leasing is a bit more worrisome...

    "Most businessmen don't like their competitors, or for that matter competition. They want to make as much money as possible and getting monopoly is one way of making a lot of money. That is fine, however, so long as they do not use methods calculated to make consumers worse off in the long run."

    The "...but we haven't hurt the consumers" argument is exactly what MS has been pushing all along.
  • by Legal Penguin ( 114844 ) on Friday November 19, 1999 @01:54PM (#1517886) Homepage
    He didn't mean to say that. What he meant to say (to give him the benefit of the doubt) is that Judge Posner is one of the founders of school of legal thought known as law and economics. Law and economics is usually associated with the University of Chicago, where Judge Posner has taught for many years. He and Nobel Prize winning economists like Ronald Coase and George Stigler (among others at the U of C) are credited with much of the research and writing fundamental to the law and economics approach.

    To suggest that law and economics views all regulation of the market as bad and therefore that Judge Posner will automatically favor Microsoft is a serious oversimplification. It's worth remembering that Larry Lessig, who was dismissed as special master in the M$ case because of his perceived bias against M$, was a University of Chicago law professor as well.

    I got my law degre from U of C and studied under Judge Posner while there, so I felt the need to post something. I'm not sure how I feel about this turn of events and I expect to post more later after I've had some time to think, but it must be noted that, of all the things Judge Posner can be accused of being, he is not stupid. In fact, though many disagree with his views, I can say almost without fear of contradiction that he is one of the smartest people on the planet. This is a very interesting development on which more later.

Testing can show the presense of bugs, but not their absence. -- Dijkstra