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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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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?
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.
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!
You're right, that is glossing over an important point. Here's my thinking:
The basic design model for IE is consistent across platforms. MS used various tools (I can't remember the primary Win2Unix tool's name off the top of my head) to port the code. However, on the Windows platform Microsoft has manipulated the structure of the program such that the various functions are now distributed throughout the OS, and the IE application is pretty much just a shell that calls various network, parsing, script execution, and other components implemented as DLLs throughout the OS. However, I'm of the opinion that just because they sprinkled the DLLs into the OS and made use of them elsewhere does not justify the various claims of "integration", claims that the integration benefits the consumer, and that this integration was a natural evolution of the product. There is still a distinct application hidden in the woodwork of the operating system.
To me, Microsoft's arguments about WIn98/IE integration sound a lot like the Iraqi behavior concerning chemical weapons in the gulf war -- they separated the components and distributed them throughout the country. While some of the components may have then been legit pharmeceuticals stored in a given factory, that doesn't preclude a factual conclusion that there still existed chemical weapons in the country. I see the MS lawyers saying "Look, no browser here, just an OS." But I see a distinct app with a distinct model, development plan, characteristics, features, and even portability, all swirled around in Win98. The only real effect of that "swirling" that I can see is to prevent easy removal of the application, and to (successfully) stifle a competitor.
Jon
I think not...(*poof*)
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
they say somewhere in their document that no products but the simplest product cannot be split into two components. That seems like a valid claim.
I think that they have some good points about why it is not illegal to bundle two products.
I also think many of the criticism MS received for bundling IE and windows is a direct result from the fact that some people for various reasons don't symphatize with MS and dislike most of their products (for varioous reasons).
The fact remains that bundling the two adds value. I.e. the resulted integrated product provides is more valuable than the two seperate products. Since building software like any business consists of adding value it makes perfect sense to integrate two products you have.
The claim that you could also achieve this with a third party product is also not correct. MS like it or not has several non standard features in IE and in the integrated OS there are several things that depend on those features and would be difficult to provide with a third party browser. The only thing you therefore can claim that MS is stimulating the use of their propietary technology. Since there is no law stating that you should comply with W3C standards that is perfectly legal.
From a business point of view it is also a smart thing to do (See latest profit figures for MS).
Those people thinking that MS stood trial for their browser integration are wrong. Sure it was part of the trial but the real issues MS misuse of their monopoly position. The way they forced customers to buy their products rather than those of competitors.
Being anti MS is easy that's probably why it's so popular these days. In my eyes they are a normal company that operate their business like all their big competitors do. In my eyes stuff like AOL and Time warner merging is much more scary than the way MS is doing business. I'm under the impression that the only reason this trial got this far is because other companies lobbied for it to happen. The DOJ is not trying to protect our interests he's just trying to score in a big case. The companies that lobbied for this case are not interested in serving our interests but are just trying to protect their market shares.
Many people blame MS for netscape's way downhill but lets face: it they were out competed by a a better product. Perhaps it wasn't such a healthy company. Especially the first generation of web users are smart enough to download and install software. They downloaded IE more often. The stuff about AOL forcing their users to use IE is bullshit because that only accounts for a few million users (on a much larger population).
Netscape had a technological edge over internet explorer until version 3. After that they've produced crap. The one thing that kept them alive is that they could run their crap on non MS operating systems while MS chose not to do so (talking about monopolies).
Mozilla isn't crap though. If it's as good as people promise it will have a chance, also on the windows platform. It will have to compete with IE on quality. If it can provide a better end user experience (end users don't know what w3c is and don't care about the standards that originate from that institute)it will gain popularity. quickly. If it doesn't it won't gain much popularity.
The latest builds of mozilla look promising and there's definately a coolness factor around the whole thing.
The whole point of this post: compete on quality not in court.
Jilles