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Microsoft's Rebuttal to DoJ
Deathlizard writes "CNet News.com reports that Microsoft has released their Rebuttal to the Findings of Fact. The full Rebuttal text can be found Here."
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I thought that the whole idea of a finding of fact is that you CAN'T rebut it. It's not a conviction or a finding of guilt. The Judge has not ruled the outcome of the case yet, this is just a statement of his opinion of the status of MicroSoft's business methods. Any rebuttal is just a bunch of hot air. They can't appeal this anyway. I don't think very many people are going to be swayed by their posturing, either.
WARNING: there is a trojan on your
Do change the title.
IANAL.
Well, from a brief skim of it (how come the entire text was at cnet, not microsoft?), they seem to be trying to show not that what they did was legal, but that the DOJ didn't actually claim hat they did anything illegal. Its not a defence of what they did, more an attack on the DOJ.
Selected quotes:
"There is remarkably little law in plaintiffs? proposed conclusions of law. Rather than address the legal principles that govern their claims, plaintiffs devote page after page to recounting the Court?s findings of fact, without regard to which of the facts found (or, in some cases, not found) have decisional significance."
[No tying arrangement] "The Court did not find that Microsoft forced anyone to purchase a second product in addition to Windows 98. Because Internet Explorer is part of Windows 98, Microsoft has never charged OEMs (or others) a separate royalty for Internet Explorer."
etc, etc. Plaintiffs haven't shown this, plaintiffs haven't shown that. They're not trying to claim that their actions were misinterpreted by the DOJ (although thats poart of their argument), but that the DOJ hasn't proved anything, and that even if what the DOJ says is right, they're still innocent. At least that's how I read it.
Does a lawyer want to tell me if that sort of thing (there's nothing to defend, they haven't said we done anything) is common?
If Windows 98 and MSIE are one product then how come you can get IE for Solaris, HPUX, MacOS, etc???
That document was released in MSHTML.
'smart' quotes (or is it ?smart? quotes?), make dumb apostrophes.
Perhaps the next round of MS-related litigation will be a class action suit by Windows users seeking damages for being made to appear more inept than they actually are.
For those of you who are more understanding of the legal system in the US:
:)
What are Microsoft's lawyers allowed to say beyond the trial? It wouldn't surprise me if they felt that Microsoft ballsed up what could have been a reasonably good case by obfuscating, avoidance and plain 'n' simple lying.
Can they say anything close to libelous? Assuming they didn't care for the business (which, looking at the string of cases ahead for Microsoft, I doubt), would they be able to come out on the steps and tell us Bill buggered it for himself?
I'm sure there's a few interesting books being written about this case even so...
Interesting things here are that:
:) Application of middle-age law to a current technical level could be really funny, if they'd not take it so seriously.
1. Windows 98 Is a Single, Integrated Product.
That's true indeed. MSIE is now no more than a GUI wrapper to a set of objects for talking HTTP, displaying HTML, etc., etc. That was a clever move, and a silly move was to include this thing in a monopoly lawsuit.
2. The Alleged Tie Does Not Foreclose a Substantial Amount of Sales of the Tied Product
And here we all can cry "lie!". I'm sure most of users won't bother to d/l netscape if they have a working IE (there were times when IE was hardly working, but it did improve - it is now working in about 90% of cases and in 99.9% of cases that Netscape is working). And the fact is that IE is better than Netscape, at least for now. I'm really dissatisfied with my Netscape on Unix, and would change it to a better product, if such one was available. Maybe Opera? Mozilla, which is in permanent pre-alpha? What?
In fact, would MS care to make MSIE cross-platform, it could be a web-browser monopoly indeed. But they left the niche to competitors - which failed miserably. Too bad for us.
3. Plaintiffs Failed To Prove That There Is a Dangerous Probability That Microsoft Will Achieve Monopoly Power in the Alleged Market for Web Browsing Software. and Microsoft Does Not Have the Power To Control Prices or Exclude Competition in the Relevant Market.
Huh, this is plain silly. They not "will achieve", they "had achieved", if we talk about Windows market. And other markets would be the same if they'd care to do them. And if they, having 90% of desktop OS market, still have no power to control the market, then who has, indeed? But they aruments of why they aren't monopoly are really amazing. Not only they refer to grocery stores analogy, they say they can't raise price on Windows because they can't restrict total output of the market of OSes... As if it is possible at all to restrict number of copies of Windows, given that lovely CD-Rs
-- Si hoc legere scis nimium eruditionis habes.
1. The Relevant Product Market in This Case Is Not Restricted to "Intel-Compatible PC Operating Systems."
On the demand side, consumers looking for computing solutions have an increasing array of alternatives, including, among other options, an Apple Macintosh running the Mac OS or a workstation running some variant of the UNIX operating system. (See, e.g., Findings 21.) Within the next few years, if not already, consumers who use their computers primarily "for storing addresses and schedules, for sending and receiving E-mail, for browsing the Web, and for playing video games" also will be able to choose an "information appliance" such as a handheld personal computer, a "smart" wireless telephone or a television set-top box. (Id. 23.) Consumers likewise may be able to choose a network computer or terminal attached to a server or mainframe computer. (See, e.g., id. 24.) Moreover, "[a]s the bandwidth available to the average user increases, ?portal? Web sites . . . could begin to host full lines of the server-based, personal-productivity applications," thus enabling "increasing numbers of computer users equipped with Web browsers . . . to conduct a significant portion of their computing through these portals" without regard to their underlying operating system. (Id. 27.)
It's interesting that Microsoft in a sense admit that they have a monopoly now, but that in the future they might not.
I'll do it for cheesy poofs.
As far as I can see Microsoft are grasping at straws with these findings.
They are still putting spin on things rather than trying to get themselves out of the hole.
From what I understand, the procedure goes as follows...
Judge presents his findings of fact (Nov)
Plaintiffs present their findings of law
Defendants present their findings of law
Basically, the schedule for all this was set out when the findings of fact came out. MS didn't take a long time to reply, they replied on the date given to them by the judge, as did the DOJ.
Also, the findings of fact only state facts, that MS was a monopoly and what they did. It doesn't state what was illegal in that or not. THe idea was to create a firm ground from which each party can argue.
So, the DOJ takes this and from it, pics out what MS did that was illegall and presented that 2 weeks ago or so.
Now, MS looks at it, and puts their spin on it, stating how it doesn't show any illegal behaviour. THey are not arguing the findings of fact, but that they didn't break the law and that the DOJ findings of law were wrong. Granted, this boils down to splitting hairs, but what else should they do?
For better or worse, they have a responsibility to their shareholders (I am not one) to proceed this way and deny deny deny. It's like a murder trial, you'd never expect the killer (even if everyone knows he did it) to get up and say "I DID IT!" would you? Hell no, he'll defend himself, split hairs, and hope to god that he convinces someone.
The other thing is, and this has been bugging me for a while, is that regardless of wheter or not MS did something immoral that harmed the industry yada yada yada....there is a fine line of what is illegal. They walked that line. DOJ says they crossed it. Who knows. But we can't, as educated people, simply assume their guilty of breaking the law simply because what they did offends us personally.
Just my two cents.
Wow. It's like one of those old science fiction movies where you tell the computer "The next sentence is false. The previous sentence was true" and it blows up, fireworks shooting from the front panel as it desperately spins its tapes trying to figure out the paradox.
The findings of fact game is over. Jackson's findings are pretty much set in stone now; they couldn't be much more irreversible if they were a constitutional amendment. But Microsoft just can't adjust to the new game, where they try to limit the damage done to them by the findings of law and the judgement, because that means working in the framework the findings of fact create. In other words, it means admitting they're at fault. And that just does not compute for them; they don't know how to do it. They'll sooner thrash about in useless, irrelevant legal nonsense, because they simply don't know how to play this new game.
Mind you, they barely knew how to play the old one. Their Achilles Heel all along has been that the court was just another trade show, and you can baffle 'em with bullshit and wow 'em with a rigged demo. They really can't adjust to what's happening to them, and now it will be their downfall.
I just hope that the sentencing is chosen to do the rest of us some good.
--
Xenu loves you!
OK Kill my karma you damn slashdot moderator A$$holes I dont care anymore.
I agreee MS is a monopoly and should be dealt with but.....if they are to go down it should be for the right reasons.
Intergrating IE with windows might have hurt netscapes market share in the PC market, but in all honesty netscape has never made jack off the home user.
with the "if you are old, young, a student, teacher, or anyone not in a company or goverment"
license it had it was no loss to netscape in the area of home computer users.
When it comes to terms of market share and % of computer runnign IE v Netscape the polls are always based on PC and not "Computers". There is a big disinction.
As for the OS intergration side of things, with the internet and people signing on in the 90's it makes sense to add a web browseer to the operation system. People started buying computers to get online.
"Nevermind I cant sell you that lense with this camra you have to go buy the telophoto from someone else and fork out more money to do the thing you wanted to do"
"We cant hurt lense maker market share"
See in cars you have this thing called a Radio.
you can get AMPs either "Factory" ie IE. or a name brand.
Now I agree they have a monopoly. I belive they should be broken up. But not for this. They make Shity OS's. There API blows and is closed. But for the love of god why muyst the free market go after every winner?
MS has made it easyer for the morons to get online
and Make us all alot of money in the brave new techie world. We should be thankfull windows sucks
I run linux but I make alot of money fixing stupid peoples computer when windows messes up.
Why not try going after them for the fact that they used there market share to kill apple buy not porting/licsing windows and in the process left us stuck with the x86 CISC shit.
All I'm saying is get them for something that is a real case and not a bunch of BS
Free Unix? Free Windows. http://www.reactos.com
Did we, the public, expect anything less? Microsoft is nothing if not an extraordinary spin factory.
The Microsoft Proposed Findings of Law (MSPFOL) is a very well-written house of cards that depends on the legal fiction that Windows 98 and Internet Explorer are one product. I don't need to go into detail with this; if IE is available for Solaris, it ain't an inseparable part of Win98. Their lawyers may be able to say "one product" in section 1A with a straight face, but that don't make it so. Pull that card out, and the whole argument falls. (Not to say that there aren't other flaws in the MSPFOL.)
Admittedly, from a purely functional standpoint it's hard to say where any given OS ends and the applications begin, but the issue here has more to do with integration that was motivated by the desire to stamp competitors out of existence. All the arguments I've seen to the contrary are just so much hot air. IE's quality took huge leaps forward *after* it gained large market share by being forced on OEMs and customers. Win95 and IE4 were separate products, and there's not much real evidence to support the notion that there was real qualifying benefit to the consumer in the ensuing (flagrantly defiant) "integration."
So the crux of the matter (for me) lies in arguments such as claiming IE5 is a product when it suits Microsoft's interest to offer it on another platform, but it's an inseparable OS component when they walk into the courtroom. And then there's the attempt to redefine the market (section 5A, where I should take into account mainframes and PalmPilots in the same breath) to support the laughable fiction that the Windows platform does not compose a monopoly power. To me there's a line short of which their legal hairsplitting that may keep them in the right, and over that line there's a ridiculous denial of reality that irreparably harms their own credibility. Once they cross that line, how can they expect to be taken seriously again? Is it just that they're dug in so far that there's no other alternative but to fight dead-on? Or is it just that the arrogance is so deeply ingrained that even the law is just another business obstacle to be overcome, without a second thought about the ethical, social, and other long-term reasoning behind the law?
Jon
Just my rambling thoughts. Me? I want to work for a company that still has a collective conscience.
I think not...(*poof*)
Yes, I know these are proposed findings of law, not of fact. The point is that if Microsoft want to have a serious go at proposing findings of law, they have to propose findings that don't contradict the findings of fact, and they can't do that. Until they learn to admit they're a monopoly, their legal submissions basically go in the round file, giving the DoJ carte blanche.
--
Xenu loves you!
Technically, this is not a rebuttal of the Findings of Fact, but Microsoft's arguments for what they think should be concluded from the FoF. Of course, they say they "respectfully" disagree with the FoF, but will accept them for the sake of these arguments.
But Robin's characterization is not as far off as it sounds. Since they cannot really get from the facts as Judge Jackson originally ruled to the conclusions they want, they did try to refute the fact the judge ruled they have a monopoly.
This is a hint they are adopting an appeals-based strategy. To insult the judge by disagreeing with the judge on something he has already ruled on (for more than 25 pages, no less) indicates they believe they have no hope of winning at this level. The only way this kind of strategy can work is if -- by insulting the guy who's ruling on your case -- you can provoke him into doing something rash. Then you can get a ruling on appeal by showing he over-reached.
Not likely in this case: This is a conservative jurist who is likely to shade his Findings of Law in Microsoft's favor after shading his Findings of Fact in the government's favor. The result will be an appeal-proof compromise.
The really interesting thing about this filing is the fact that MS's lawyers still don't have the guts to tell a man who's got close to $100 billion that he blew it in his deposition. This is most interesting when you consider that MS shareholder money is being used to take actions which are probably not in their best interest (although breaking up the company -- an unlikely outcome, in my opinion -- would probably be the most favorable outcome from a stockholder viewpoint).
Eternal vigilance only works if you look in every direction.
I agree. Having read the article before the comments I'd have to say this is redundant. Perhaps if clicking on the comment button opened the comments in the same window, and popped up the article in a new one on top of this.
Reposting the whole thing is only useful when the object of interest is on some slashdotted site. IMO C|net's unlikely to be slashdotted.
-Yarn - Rio Karma: Excellent
I thought Microsoft would have smarter people... especially with all the money they have.
Of course they did nothing wrong. You don't get to be a monopoly by doing anything wrong. You only get to be a monopoly if you do everything right. If Microsoft behaved any differently than it did it should have been sued by its stockholders, and rightly so.
But that is not the point.
Antitrust law is not about "you have been a bad boy, now you will be punished". It's not about right and wrong. It's about what works, and monopolys don't work for consumers. The free market works remarkably well most of the time but when it doesn't antittrust laws kick in.
----
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
Here are two small excerpts from MS's filing:
As one court recently held, "where a patent or copyright has been lawfully acquired, subsequent conduct permissible under the patent or copyright laws cannot give rise to any liability under the antitrust laws."
Plaintiffs do not contend that Microsoft unlawfully acquired its copyrights. Consequently, Microsoft cannot be held to have violated the antitrust laws simply because it exercised its rights under federal copyright law to prevent unauthorized modifications of Windows.
Specifically, MS then states that since the Windows startup screen is part of their copyrighted software - any modifications are prohibited even if the licensing clause didn't expressly forbid such modifications. Several precedents involving television (Monty Pyhton!) and books are referenced.
This is an interesting argument and, unfortunately, I think under current copyright law it is an argument that may be upheld in higher courts. If you treat a computer operating system like a book, then the OEMs have no legal right to make any modifications to the Windows startup screen. Frankly, this simply reflects some of the problems with current copyright law.
It will be very interesting to see how the courts respond to MS's copyright arguments.
Interesting argument. I can see it now:
"This car is nice, but... It looks just like the other one over there."
"Oh, no, ignore that. They copied our design. Besides, our car NEVER crashes, and is much easier to use. Just look at this interior, the seats, the wheel. That one is obviously a knock-off."
"Are you sure? I thought it came out in 1984? I heard your model didn't come out until a few years..."
"HEY! Look at this, this car's radio is really great. It works best with the MS Radio station standard - a vast improvement on the current, old standard. No other player can do the things ours can."
"Really? I didn't know there was such thing as MS Radio"
"There isn't. We're working on that."
"Oh, well... Can I replace it with another radio?"
"Sorry, you can't remove the radio. It's an integral part of the vehicle. We make a similar radio for a couple of other kinds of cars, but in the Super Deluxe car it must stay."
"Oh"
"We'd help you remove it, but really, it will break everything. You see, the structure of the car is built around it. Of course, this was done purely by accident - we didn't at all think it'd be a good idea to design a way for other radios to be used as well. Oh well, it's too late now."
"Yeah, I guess."
"Anyhow, here are your keys. Please enjoy your drive home. While you're at it, here's $40. Could you write a nice little letter to the editor about how much you like our cars? Thanks!"
"By the way, the swelling should go down in a few days. A soft cushion and some Preperation H, and you'll be good as new. I hope it was as good for you as it was for me - we sure do love to innovate!"
- Jeff A. Campbell
- VelociNews (http://www.velocinews.com)
- Jeff
Uhhhh.... but if a company does something illegal - why the hell should we ignore that, on the basis of what they did in the PAST?
Sure, Mr. fictional John H. Smith may have donated $X to a charity and been nice to my kids, but if he's convicted of murder, we don't forgive him because he was NICE in the PAST!!!!
Claiming that MS is a good company and shouldn't be punished for shady/illegal business practices because they "may" have helped the rise of the PC (which is your OPINION anyways, although I am in some agreement)is poor and rather shady logic.
Respectfully,
Kevin Christie
kwchri@wm.edu
Are they even refusing to concede that there is a market for browsers out there? Did they invent the browser or something? If so, why do I keep seeing spyglass.exe get copied to hard disks when I install NT around here? Gee, where did that spyglass.exe come from?! :)
I'm not often in personal contact with Microsoft machinery, but when I cannot avoid it, it often drives me up the wall that unless one is using all-Microsoft components, things often just fail to work.
This is particularly so in respect of their web browser, eg. if you have Netscape installed instead of MS Internet Explorer then don't bother attempting to install Netmeeting --- it notes the absence of MSIE and refuses point blank to install at all.
It's this kind of tie-in that makes a mockery of Microsoft's claim that Windows is really an open platform, ie. in the browser case they make damn sure that MSIE *cannot* be replaced by an alternative. It may look an open platform from the outside, but they do everything in their power to prevent non-Microsoft choices from being made. It's the pits for user choice, and this kind of tie-in dependency is one of the principal drivers of the MS monopoly.
Do the Findings of Fact address this tie-in issue in any way?
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
I would have expected pitchforks and flaming torches on this one. I'm surprised to find that many of the posts are readily admitting that IE is a better browser than Netscape.
Well, I DON'T feel even-handed at all. I don't care if IE is the first browser to be written by a team of crack ubergeeks assembled by God himself. Neither it nor Netscape approaches full compliance with the HTTP/1.1 spec, and most of the stuff that they leave out is stuff that I want.
Just glancing at Microsoft's "Conclusions of Law", I gasped in stunned bemusement many times before the end of the contents page. I liken my bafflement to the increasing sense of horror, confusion, and ulimately, frustration that occured last time I tried to repair a non-functional Windows 98 system.
Is it just me seeing this, or is every single chapter titled to directly contradict an element of the judge's earlier findings? Of what possible use can this document be, if it is merely a reassertion of Microsoft's belief in it's inalienable right to crush opposition in any arena by any means. We already know that they believe this about themselves. I'm sure we don't need to be reminded on a monthly basis.
From my point of view, the entire document is an attempt by MS to cloud the issues surrounding the case, to better their chances in the inevitable appeals process. It strikes me more as an effort to continue an argument about the findings of fact more than an attempt to draw conlusions from the facts.
I've heard a lot of spurious nonsense about this case, from the "MS is being victimised for being successful" line (No, they are being tried for breaking certain laws. Broken with gusto, I might add), to "MS's competitors can't keep up on a level playing field, so they try to beat MS in court." (What level playing field?)
I'm just as happy to see MS eliminated in court as to see them lose their market share outside of court. It makes absolutely no difference to me, as long as they are out of business, and their ridiculous attempt at a modern operating system is gone with them.
Hmmm... I repectfully disagree with you.
**Consider that it was MS dos and then windows that led to the exploding PC market**
I would have to say that the invention of the browser and hypertext and cheap hardware has led to the exploding PC market, dos/windows has just gone along for the ride.
**But they were there, with the minimal functionality and ease of use to make people take a chance and buy a PC**
I believe that most people who buy computers are not informed with regrds to technology or operating systems. They buy computers because they want to take part in this whole internet thing, or maybe they want to make their own greeting cards, etc... The OS on the machine has nothing to do with people "taking a chance to buy a PC"
IMHO most consumers are sheep, you can give MS credit for realizing this and hiring brilliant marketing people.
Where, in the Constitution, is the government permitted to seize or otherwise modify the property shareholders in Microsoft own? It's not in the Constitution, and we both know it. However, the Sherman Anti-trust act(s) have been found to be in accordance with the U.S. Constitution, ergo the government has a right to intervene, a la Standard Oil or AT&T.
I ask of all you educated Slashdotters, take a step away from the details and ask: "Who is Janet Reno to decide what a private and voluntary association of owners, employees, customers, and other contractually bound participants can do with their time and effort?"
Well, IIRC Janet Reno is the Attorney General of the US of A, and is charged with seeing that violations of federal law are prosecuted. AKA the Sherman Anti-trust acts under which the DOJ sued Microsoft.
This is software after all - the most insubstantial and ephemeral product in existence. Literally nobody is coerced to or prevented from doing anything with software.
You could just as easily argue that "literally nobody is coerced to or prevented from doing anything with electricity." [aside: too bad most of us live in communities where the local electrical company has a de facto monopoly...] My point is, if company A acts in violation of the law and in the process takes down the profitability and therefore of company B, thus limiting my choices to a quality product which would have otherwise been developed, damage has occurred.
I won't italicize and copy the my most vehement area of disagreement... the part about the suppression of legit businesses, etc. Because Microsoft has used every tactic in the book as clubs to beat new-technology competitors.
Some of those tactics have been found by Judge Jackson to be (findings of fact) horribly and completely beyond the scope of fair business practices and way into the domain of monopoly-protecting stuff that is AFAICT against the law.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
Now I am not a lawyer, but this seems to be saying that Microsoft can't be considered a monopoly because the area they dominate (Intel-compatible PC OSes) is just one of many types of computer, and with Macs, Linux, and good ole mainframes out there MS isn't a monopoly.
Hmm... where I work there are about 60 computers, all Intel compatible, all running a flavour of Windows (although a few also run another OS as well). Maybe I'm confused, but I thought that the majority of desktop computers were Intel-compatible. Guess I'm wrong huh MS?
More cute quotes: "There is no finding, nor could there be, that Microsoft controls a significant percentage of the productive assets in the software business or any part thereof."
From what I can find, Microsoft has a Market Cap of $564,000,000,000. The next biggest public software companies are Oracle and SAP which have Market Caps of $78,000,000,000 and $75,000,000,000 respectively. If Microsoft has an order of magnitude in size over these guys, yet doesn't control a "significant percentage of the productive assets in the software business", they must have a hell of a lot of unproductive assets.
"In fact, existing operating system competitors, such as the producers of BeOS or Linux, could readily expand their "output" to meet the entire demand for operating systems without acquiring new productive assets. It is simply a matter of signing new license agreements."
Nice of them to acknowledge Linux and BeOS as competitors. Anyhow, the above quote just shows that the issues are different when it comes to software so you can't use the same rules as for groceries. But even so, the above argument is obviously untrue. Commercial Linux vendors and other OS venders, whoever they may BeOS do still have to provide upgrades, tech support, and a distribution channel for their OSes. At this stage no commercial entity could take up the slack if MS stopped selling Windows.
And to think -- if they produced a decent product people would evangelize it because they liked it! This above just goes to show that the advances between subsequent versions of Windows OSes are so minor that they have to spend money convincing people to pretend the changes are useful and develop software that requires the advances, therefore requiring people to buy the new copy of Windows.
This doesn't show what they want it to -- that competitors don't face an entry barrier that MS does not because they too have to spend money on marketing. If MS didn't spend these millions people would still be developing for Windows -- maybe not for Windows SE 4.10.2222A, but for Windows nonetheless. Are they seriously trying to claim that the fact they have a 90% market share doesn't give competing OSes a disadvantage in getting people to develop applications for them?
Anyhow, there are tons of funny bits in this document. I encourage everyone to at least skim it so they actually know what this is all about. MS does make a few good and relevant points, but overall the arguements just don't make sense to anyone who understands the facts.
There seems to be quite a bit of confusion as to the subject of this document. In the United States and other common law countries, a legal result depends, in part, upon certain findings of fact, and in part, upon the application of the law to those findings.
In some cases, the facts are determined by a jury, who returns a written verdict reporting their results, and in other cases, the facts will be decided by a judge. US v. MS is the latter type of case, and thus a so-called "bench trial," was held.
Here, the Court wears two hats, one as the finder of facts, and the other as the finder of law, who will issue judgment based upon those fact-findings. Since the Court is accountable to the appellate bench, these findings are typically memorialized in an Opinion, which separately states (sometimes in numbered paragraphs) findings of fact and findings of law.
The distinction between fact and legal findings is not always clear, and there are such creatures as "mixed questions of fact and law." For these purposes, however, this much of an introduction should suffice.
It will not surprise many readers that the Court frequently invites the parties to offer their respective views on how the trial went, by submitting proposed "Findings of Law and Fact." Since neither party reasonably expects their proposed findings to be adopted entirely, they are often written somewhat as advocacy pieces.
In this case, the Court split the fact-findings and law-findings in two, publishing the Court's fact-findings. The document referred to here is Microsoft's proposal for the findings of law with respect to those facts.
However egregious the conduct in the findings of fact, it is possible that as a matter of law, those facts do not satisfy the elements required to prove an actionable offense. That is what Microsoft is trying to argue here, with a sound, albeit highly technical, legal analysis, that the government, may have proved too much (that Microsoft is really nasty), but that they didn't prove enough (the specific elements and all relevant findings required for antitrust liability).
The document, accordingly, is a rebuttal, not to the findings of fact (which are necessarily and expressly assumed "arguendo" -- for the purpose of the argument), but to the proposed findings of law set forth earlier by the government.
In due course, the Court will complete its "opinion," dropping the other shoe with its findings of law. From this composite Opinion, the Court will then determine what Judgment shall issue, and will render that Judgment by filing it with the Clerk of the Court, triggering the time for Motions and appeals.
Expect there to be substantially more action between those events, however, as I am sure that the Court, if it finds liability, will invite the parties to suggest appropriate sanctions, and so on and so forth.
Hope this is of some help to those who may have been lost in the Findings.
I agree with you that metaphors get way out of hand and are a poor argument tool.
However, I think your counter argument actually re-inforced the other's points.
What purpose does it serve to integrate a radio with the car's computer allowing anyone that steals the radio to disable the vehicle? Or, for a radio frequency to inhibit the operations of said vehicle causing a safety hazard?
What purpose does it serve to integrate a browser with poor security with an OS, allowing any malicious ActiveX complete control over the OS?
What real benifits does "Integrating" the browser with the OS give you that a properly COM/DCOM/OLE/ActiveSquigy/HeyBaby2000 enabled 3rd party browser wouldn't be able to do? And don't say "speed" as Microsoft did a wonderful job of convincing the Judge that performance was not impacted when IE was removed when they manufactured false evidence.
Maybe it's time for Lemon Laws in the software industry.
Actually, there is another way to see it. If Microsoft stopped selling Windows, other companies (or more loosely, organizations -- "company" in the older, more general sense) would do exactly what you say that couldn't. The only way to measure the slack you mention would be to remove Microsoft from the equation. (I'm not advocating it -- in fact, I am agreeing with this aspect of the MS rebuttal.)
If there were no Microsoft, it would be some other company, but it is a reasonable / expectable expectation for one OS manufacturer [or at least one style of OS] to dominate for a period of time. Not inevitable, only one reasonable possibility. Just like bellbottoms, or road widths -- or maybe just like connectors. If all the neighbors have metric nut drivers, it's hard to borrow bits unless you do too. A new kind of nut driver has to overcome the friction of conventional wisdom and widespread availability, and this places a pretty high burden of proof on it, but it also tends to ensure that new drivers will indeed kick ass, or at least be sufficiently intriguing to spark trial.[Like all analogies, it's got limits, but hey.] The important thing is that it would be unreasonable to expect a single manufacturer (OS or nut driver)to dominate for an infinite length of time, without true and determined coercion. For another analogy, just as limited, consider how strange it would be if a single engine type didn't dominate the automobile market. Now there are many type of internal combustion gasoline engines, but if you buy a car, chances are it will have some variety of (shorter) i.c.g.e. For most people, they offer a more acceptable alternative than alternatives such as electric motors, fuel cells, etc -- taking into account all the factors (availability, initial cost, upkeep, range-of-tank, etc etc etc), people buy them in greater numbers than the others. But that won't always be the case, or at least there's no reason to think that it will always be the case. There's still enormous variety in the designs of available i.c.g.e.'s -- some are for racing, some sip gas but go put-put-put
With MS operating systems, it's sort of like one brand of engine dominating the field, because the mechanics and drivers are all used to its machinations and "feel" respectively. Again, there's friction, but it's finite.
And this is not something that can be neatly legislated; while it's not inconceivable that a government could try to make decisions about what the marketplace should feature (it does, all the time), nothing does this as neatly as a price system. With the availability of excellent operating systems (free in either or both senses), Microsoft is pricing itself out of its own OS market, at least for some sectors.
Back to the slack you mentioned! If MS were to fly lock, stock and barrel to outer space tomorrow at 8:13 a.m. (Pacific), there would be a hefty period of adjustment -- but things would settle. Some people would use other OSes, others would band together as a sort of support group to keep using Windows for a while (damn legacy apps!), still others would decide it's a grand time to finish up that revolutionary OS they started for the PhD and abandoned to take a 12-digit salary somewhere. But when you tug on a slack rope, it jerks before tension is restored.
just some thoughts,
timothy
jrnl: http://tinyurl.com/c2l8yr / foes: http://tinyurl.com/ckjno5
Netscape used to be sold for around $30/license if I recall correctly. Although downloadable for free, for a time it was free only for personal use. Commercial users had to pay for a license, until Microsoft dumped IE on the market at no cost whatsoever and Netscape was forced to reply in kind or lose 100% of their market. It was clear then, as it is now, that Microsoft was leveraging their monopoly on desktop pcs to strangle Netscape's revinue stream and put them out of business.
The only thing "strange" about this case are the absurdities and mutations of fact eminating from Redmond, and being repeated here by certain (quite possibly well financed) parties.
The Future of Human Evolution: Autonomy
Um, okay... That's fine. Different things for different people I guess.
But - what's a panguine?
- Jeff A. Campbell
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- Jeff