Slashdot Mirror
Appeals Court Will Take Microsoft Case
Jason W writes: "In a legal victory for Microsoft, the U.S. Circuit Court of Appeals agreed to hear the case. This was before Judge Penfield Jackson could hear the governement's request to bypass the lower courts and take the case to the Supreme Court."
Unfortunately, MS did not entirely succeed in their goals.
1) if Appeals court declined to hear the appeal, they would have been fscked (an unlikely event)
Tiny victory for MS
2) If Judge Jackson decides to pass the case directly to the Supreme Court, and they agree to hear (the current constitutionally relevant portions), then the Appeals Court will be bound by those findings. Could go either way.
3) If Judge Jackson decides to pass the case directly to the Supreme Court, and they agree to hear (as above), further issues raised on appeal may be heard by the Supreme Court, but such new arguments may be unlikely, due to the nature of the appeals process. Could go either way - a possible chance for MS to reformulate (if done carefully) vs. tying their hands with what they say in the Supreme Court appeal.
4) the Supreme Court may decide to wait until the Appeals Court has ruled for reasons of simplicity. This allows MS to stall.
My assessment: a tiny victory for MS -- not nearly as big as the press made it seem. The alternative would have been for the Appeals Court to refuse to hear the appeal, since not all elements of the MS Appeals Court appeal would be Supreme Court fodder, anyway.
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
Just like DR-DOS, Netscape, and others have tried to make money? Before this trial, Microsoft let companies make money in the windows market if they made a product that Microsoft didn't make yet, or if they were a windows symbiote (anti-virus companies are a good example here) that Microsoft hadn't assimilated yet. Remember the testimony during the trial about companies who would abandon plans for products just on the rumor that Microsoft would be entering that market?
Why can't OEMs put Netscape on the machine with IE, and let the user decide? Because Microsoft bullied them not to, that's why. I've heard that IE is really a better browser; I haven't used it. But even if that were the case Microsoft wasn't willing to let the consumer decide on the merits of the software. Instead, they used their OS monopoly to take over the browser market as well.
Y'know, if you're going to try to allay criticism of the holes in your argument by taking one or two counterpositions, you could at least pick something factual for the counterposition. Linux has just begun in the last few years to run more of the Internet - to be specific, Unix and open source made the Internet what it is today. I hope that Linux makes the Internet even better tomorrow - I don't expect Microsoft to do so.
I care because half of the intranet pages at work only display correctly in IE. I care because in order to access my work Unix machine I have to use a Windows machine at home, even though I have a Linux box at home too, because my company's VPN software only runs under Windows. I wouldn't care about Microsoft being a monopoly if their software was high-quality and they arrived at their monopoly by making the best products, but I bitterly resent being forced to use mediocre software as a result of their illegally-acquired monopoly, and I'm appalled that such mediocrity is the standard to which the consumer has been forced to become accustomed.
Soapbox indeed...
Your right to not believe: Americans United for Separation of Church and
In Canadian law, at least, you have to have a reason to appeal. I don't know American law very well, but it seems (inferring from the Wired article) that that's also the case in the US. So what grounds are they using for the appeal?
Fortunately, once the appeal is filed it will become a matter of public record and all of slashdot can descend upon it like a swarm of crows on a roadkill.
If public statements of Microsoft's lawyers are any indication, the appeal will be based upon four lrge grounds:
1) the prior law established by this appeals court
2) the factual record (appealing instances of the FoF in which Microsoft claims Judge Jackson made irrational judgements and ignored evidence)
3) the legal precedent of this case in context with other antitrust rulings
4) the severity of the punishment in relation to the accusations
It will certainly be interesting. I'm waiting on tenterhooks.
-konstant
Yes! We are all individuals! I'm not!
-konstant
Yes! We are all individuals! I'm not!
Why? It is extremely unusual to by-pass the Court of Appeals. Unless the SC wants to make this a precident, they will just follow the normal procedure. The Court of Appeals is showing all signs that they are taking this seriously. They were willing to have all the Justices hear this case; three have opted out, leaving four Republican President appointees, and three Democrat appointees. This move is also unusual, but it tells everybody, Hey! We are serious and are willing to devote a lot of our resources to this case.
The Court of Appeals moved very quickly. While a schedule has not been release AFAIK, they will undoubtably expedite the hearing of this case. This would take away some of the arguments for taking this directly to the SC.
There is a lot of legal paperwork, review, hearings, etc... that will be generated by this appeals. Decisions will be made. All this generates a papertrail that is the foundation for a Supreme Court hearing. If they by-pass the Court of Appeals, then the SC has do this background work. The Supreme Court under Rehnquist does not hear as many cases than the SC did, let's say, 30 years ago. They would not want to venture into this without the background, nitty-gritty work that the Appeals Court would do.
The SC will not take this one away from the Court of Appeals. If Jackson asks, he will be turned down. Then guess who will be perturbed by this audacious move?
BTW, the SC is not a liberal court. In the past few years, the conservatives have been in the slim majority. The Court of Appeals will also have a slim (4:3) conservative slant.
OK, guys, here's the drill. In a federal case, the Circuit Court of competent jurisdiction has NO DISCRETION AT ALL whether or not to take up an appeal after a final order from the District Court.
Thus, it misses the point to say that they "took up the appeal." They had no choice. After a Notice of Appeal is filed by Microsoft, the case automagically appears on the Circuit Court's Docket. Period.
What is interesting is what they *DID* do, which is to order the review of the District Court case en banc (that means ALL the judges who don't recuse themselves will hear the appeal, not just a panel of three). The order can be found on-line here
This actually isn't so great for Microsoft, because it means that, while they can be assured that two of the three judges who found for them in their first 2-1 victory (on different issues), those two judges will be a MINORITY of the panel that hears this case.
IF THE COURT HEARS THE CASE . . . the Supreme Court can still take up the case directly, or they might wait until after the En banc review is complete.
By way of explanation, Circuit Courts are big courts, typically with at least a dozen, and sometimes way more (the 9th Circuit, e.g.) judges. By random assignment, three of the judges are heard to review each case. After the three judge court has ruled, there is the possibility (before Supreme Court review) of the Court AS A WHOLE (en banc) to review the work of the three-judge panel, which is rarely done except for a really, really important case, or to resolve conflicts of precedent among prior three-judge opinions.
What is interesting is, not that the Court took up the case -- they had to. What is interesting is that the Court has decided to bypass the three-judge review, and go straight to review en banc. (Some Circuits call it "in banc.")
I know it sounds minor. But we are already far too close to believing the hype and buying into the reduction of everyone to consumer cogs. There is value that transcends economic value. People are more than producers and consumers. Citizenry matters.
The Mongrel Dogs Who Teach
Sure, it will happen, but it is highly unlikely that the Supreme Court will take this case. "Gravest National Importance" (which I believe is the operative standard for this particular type of jurisdiction) is a VERY stringent standard. Moreover, there are a plethora of SC opinions on the virtue of taking these cases through the appeals process, to isolate the true constitutional questions. In short, I highly doubt the SC will take this case away from the DC Circuit. The fact that the case is en banc is pretty interesting. The Ninth Circuit (most of the west, including CA) often hears cases en banc, because there is a minority of the judges in the circuit that often hear appeals cases and produce bizzare results. The en banc method makes it so those judges can't make law on their own. In this instance, it prevents Microsoft from facing a lottery on which judges will hear the case - all the judges (that want to hear it) will hear it. So the opinion will truly reflect the thoughts of the Circuit. All in all, probably a damn good idea.
This really doesn't matter. Tomorrow the DOJ can formally ask for the Expediatary Act and the judge can certify the case as meeting the Act's stipulations. Then, the Supreme Court has the opportunity to take the case, out of the district court's hand. You can bet this will happen too.
Dodger_
No one butters the bread of district court judges. They may as well be god.
Regarding perjury, wouldn't you think Steve "We are not a competitor of Microsoft" Case would be a better target?
Oh, wait, we don't dislike Steve Case.
Or do we? He's AOL, and AOL is for lamers, so Steve Case is fair game, right?
I can never remember who's fair game for a lynching. I wish someone could print up a nice table of who's evil, and who's on our side. It would also be handy if someone could give a quick outline of how the law is supposed to change when it applies to people we like versus people we don't.
The 9th Circuit has nothing to do with this case (I just mentioned it above as an example of a LARGE Circuit court).
Of this much I am certain, a Circuit Court judge has probably NO INTEREST WHATSOEVER in the public perception of his or her decisions. There are few positions in the world as powerful as that of a Circuit Court judge and few positions as desirable. Moreso even than the Supreme Court, these guys get to practice "pure law" i n the highest.
They pride themselves on their ability to follow the "law" rather than their instincts, and are far more concerned about their colleagues' viewing their work as pandering or anti-intellectual, than by writing a popular opinion. They tend to be more "by the book" than the Supes (who are not final because they are infallible, but vice-versa), precisely because they are subject to review.
In short, Circuit courts, particularly EN BANC circuit courts, tend to do a really, really good job on the merits. What Microsoft misses by the en banc review is that their best chances for a win (getting both of their two judges from the earlier case on the panel) is mooted entirely.
Moreover, there is one other thing. A 3-judge panel is BOUND by a prior 3-judge panel's decision as precedent. However, an en-banc panel can REVERSE the previous 3-judge panel. This adds a very interesting new possibility to the mix:
1) The Court can find the earlier opinion controls and reverse the District Court (or just reverse on some new grounds).
2) The Court can find the earlier opinion does not control, and decide to affirm the conviction on that basis.
OR, the new possibility
3) The Court can find the earlier opinion does control, OVERTURN the earlier opinion, and still decide to affirm the conviction.
In short, the briefing allows the government no only to argue why the earlier case isn't relevant, but can also argue that the earlier case WAS WRONG!!!!!
This is a big deal -- particularly because the third result can really slam the number of Microsoft chances on a subsequent appeal to the Supreme Court.
"Microsoft appeal"
A contradiction of terms
Except when in court
According to an article at The Register ("Appellate court will hear MS whinge"), MS did turn in the paperwork -I agree that the response looks a bit rushed, but it is not clear that protocols were actually violated. I think we may be dealing with another case where part of the story got out before the details did. We should wait for Today's (Wednesday's) news before we get too caught up in debating any presumed "short circuit" of the judicial process.
--
Sheesh, evil *and* a jerk. -- Jade
I hope we get a better understanding of why the Appeals Court took the case even before the District Judge had issued an opinion about the stay.
But I wonder if Microsoft's haste and hyped claims of damages might not have the unintended effect of persuading the Supreme Court to take the case first. (I noted with amusement the angry comment in Microsoft's appeal brief that, prior to Judge Jackson's finding of fact, Microsoft enjoyed the largest capitalization of any firm--in other words, placing all the blame for the NASDAQ collapse on Judge Jackson's attempt to apply the law to technology economics--and not Microsoft's bad management.)
As one (in the case Eldred v Reno, to overturn the copyright extension act) who is now facing the exact same Circuit Court of Appeals, I ought to state that I do not believe they are biased, nor that one can predict which way they will rule by their political persuasion. However, I hope that the justices will examine the unprecedented 39-page appeals document with some care. For example, I hope they do not agree with Microsoft's characterization of Larry Lessig's friend of the court brief on the tying issue. (After all, Lessig is my lawyer too.) There they completely distort the brief and are trying to use psychology instead of logical legal arguments. Microsoft's usual practice is to keep trying with the hope that version 3 or 4 of the product will finally be okay. I hope nobody buys that here!
Discuss in OpenLaw
DB
The Supreme Court will not hear the case before the district court.
The government's legal strategy against Microsoft in Jackson's court was "back up the dump truck, give him every shred of evidence and argument possible."
The case ranged from Netscape to Java, from MSN to "Channels."
The DOJ attacked MS with a double barrel shotgun.
To argue before the Supreme Court, you need to attack your opponent with a scalpel.
The Supreme Court *never* takes undefined cases like that. Remember, the High Court does *not* function like a typical courtroom. The Justices will call in attorneys from MS and the DOJ, and will *grill* them unmercifully; the questions asked will be carved with an exacto knife.
There will be no witnesses. There will be no "presented evidence." There will be no cross-examination.
That is what the appellate court is for. They will take the (IMHO) very random case from the DOJ, and narrow it down, if you will. By now, both sides have sharpened their arguments considerably. Higher legal precedents will be examined; feelings will be hurt.
To whomever stated that the case is still likely to go to the Supreme Court in lieu of the Appellate: You are dead wrong.
1. By agreeing to expedite their hearing of the case, the Circuit Court of Appeals removes virtually every reason for the case to go to the High Court. (The DOJ's argument is that possible consumer harm warrants the Supreme Court hearing the case now. However, based on scheduling, the appeals court could hear and rule on the case before the High court could touch it anyway!)
2. Not only has the 3 judge panel agreed to hear the MS case.... the entire District Court panel will hear the case en banc. That is unprecedented!! (Three of the ten judges opted out, leaving the court pro-MS, 4-3) With that kind of unheard-of force from the Appeals court, the Supreme Court won't touch this thing.
Quite frankly, things now look very bad for the DOJ. This appeals court has *always* sided with Microsoft on even the most minute of matters. Think Penfield was hard on MS? The same fate awaits the DOJ.
What leads me to this conclusion? Firstly, four of the the seven judges presiding over the appeal are staunch Conservatives. (Jackson, though a Reagan appointee, has always been center-of-the-line, and quite anti-MS.) Secondly, this same court flat-out rejected Jackson's two previous rulings on Microsoft. (This happens less than you might think... two slaps in the face for quite similar legal matters.)
Plus, the DOJ now looks quite foolish for having the audacity to ask Jackson to withhold his ruling on MS conduct stay requests. Regardless of Jackson's opinion on the matter, the The District Court of Appeals has now basically said, "That'll be quite enough out of you. We'll take it from here."
Love MS or hate them, legally-speaking, you can't help but be shocked at the level of incompetence the government has displayed in this case. From the infamous Netscape-buyout offer from Barksdale to the amazing shifting market that invalidated many of the DOJ's arguments, to this latest stay fiasco, the DOJ fought like a lightweight.
"But they won" is hardly an argument. Jackson has never pretended to be impartial. (Two previous hard-hitting verdicts against the company, the fact that he - not once - accomodated a filing by MS... the fact that he basically took the DOJ's closing arguments and put his name on it for prelems, the fact that he spent about an hour deciding the fate of the company...) Microsoft never stood a chance in his court.
I was surprised, not by the fact that he ruled against MS, but the fact that he didn't order Bill Gates' death by hanging.
I also strongly am offended that he punished Microsoft because "they exhibited no remorse." Umm... if you are basing your entire case on "WE ARE 100% INNOCENT", logically speaking, why would you exhihib remorse in trial or in public? That would undermine your argument's foundation. Did he expect MS to apologize for the decline of every company they offended? These aren't murders, for christssake, these are multi-billion dollar businesses.
Frankly, if I ran the DOJ and wanted to go after Microsoft, I'd have one argument: "They put that talking paperclip in Office."
Interesting to note that the entire appeals cout will hear the case instead of the usual three judge panel. Does anyone have more info on why, or how unusual this migth be?
The Yahoo piece suggests it was a coup for MS to get it in front of the appeals court instead of going directly to the Supreme cout. I'm not so sure. To me it looks like Judge Jackson wins since his refusal to stay the conduct rememdies seems to have light a fire under M$'s arse.
Part of the reason for not going to the supreme court is that due to the way the case is structured only part of the case would be allowed to be heard by the SC. Thereby splitting the case into two seperate cases which, of course, MS would never want. Especially if they can go this route and get it all swept under the rug... -jingy
--And sektor spoke and said unto the people. Hey, buttwipe hand me the cheezeos.
Well...according to an Bill Gates did on Dateline...Microsoft is looking for the quickest solution. He commented that the "Quickest solution would be best for the consumer. A decision that will allow us to continue to innovate." Blah blah blah...and so on and so forth
Even though the fact is they are taking the slowest possible route
Remember the other suit, back in the early 90's IIRC, the one that didn't accomplish anything?
Oh, it accomplished something. Prior to the consent decree of 1994, Microsoft charged for its licenses based on how many PCs each OEM sold. Each OEM had to report how many PCs they sold to MS (important point - remember this). The government decided that this was very, very bad. They said (among other things) that MS could NOT charge for every machine an OEM sold.
However, they did agree that MS could charge for every machine sold within a model line. If an OEM wanted to license MS software on a particular model line, MS would charge them for every machine sold within that model line. So if a vendor wanted to sell PCs with OS/2 or DR DOS preloaded, they could create a separate model line and not have to pay MS. OEMs now had to report to MS how many PCs they sold within each model line (important point number two).
Because of the market dominance of MS in the consumer OS space, most OEMs didn't create model lines to sell other OSi. (Correct me if I'm wrong - anybody here buy a PC from a major OEM in the last five years with an OS other than Windows preloaded?) MS went from knowing how many PCs each OEM sold to knowing how many of each model they sold. The intelligence they received from the PC industry was increased by an order of magnitude. They knew what consumers bought and could tailor their marketing accordingly. They knew better than ANYONE what the consumer PC market was doing and where it was going.
In short, the consent decree of 1994 gave MS a powerful tool that assisted them in moving to where they are now. The government apparently didn't realize in 1994 that MS already so dominated the market. None of this was foreseen by DOJ, but you can bet your pants it was foreseen by MS. MS employees are not stupid.
So, anyone care to guess what nasty unforeseen consequences of this trial we'll see in the next few years?
In Canadian law, at least, you have to have a reason to appeal. I don't know American law very well, but it seems (inferring from the Wired article) that that's also the case in the US. So what grounds are they using for the appeal?
I believe Bill's got his law mixed up. If the case were in a state court, with federal and state issues, then it could indeed be bifurcated, with the federal portion going into the federal system, while the state portion remained in the state system (although with a case this big and complex, the court would never allow it to be split into two separate cases).
However, if the whole case started out in the federal court, this doesn't apply. If Penfeild grants their motion (how much says he does?), then the Big 9 can take it if they want to, and the Middle 3 lose out. And they'll get all of the case, not just any federal issues.
I honestly can't figure this out.
The appeals court acted BEFORE they got the actual appeals paperwork - which means that they accepted the case BEFORE they could possibly decide whether the appeal had any merit. The appeals court acted BEFORE the trial judge could address the question of whether the DoJ was legally entitled to request the appeal be initially heard by the Supreme Court.
I'm not a lawyer, but it seems like they've just made it an absolutely certainty that the Supreme Court *will* ultimately accept the appeal, if only to publicly chastise the lower (appeal) court for acting with such unseemly haste as to cast the impartiality of the entire judiciary into serious doubt.
Think about it, after jumping the gun like this will anyone be able to view this court's overturning the trial judge's decisions with anything other than profoundly deep cynicism? They couldn't even wait 24 hours (for the papers to be delivered) for even the appearance of impartiality - no, it's clear at least some of those judges are foaming at the mouth to have their say. And that is precisely why they can't be permitted to have the final word.
Maybe there will be justice (pun unintended) and the Supreme Court will announce that they, not the appeals court, will be hearing the appeal directly since the appeals court has demonstrated itself incapable of acting in the Constitutionally mandated fashion. Or, at the very least, the Surpremes will accept the case, but immediately return it to a *different* lower court for the first round of appeals.
Meanwhile I want a list of the names of those justices. Appointment to the federal bench is for life, but I want to do be sure that this little trick is remembered if any of them are ever nominated for a higher court.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
So, Microsoft buys some time. And, I suppose, more chances for the ruling to be overturned.
Does it really matter?
Let's suppose Microsoft is split in two and restrained from its usual dirty tricks. Let's even go way out on a limb and suppose that the restraints will actually work. Great. Microsoft can no longer reach for market domination.
Of course, they already have market domination.
So let's suppose that something else happens. There's another suit and Microsoft gets liquidated. Bill Gates and Steve Ballmer die in the same plane crash. Whatever.
Still doesn't matter. Because there are plenty of other companies out there that still believe in proprietary code, closed source, restrictive licenses and all the rest. Microsoft was merely the most successful and aggressive player of that game. And lots of people have learned from them.
And the simple fact is, as long as people continue to buy proprietary software and click on those licenses, the closed-source people will continue to make money and exert control over the computing world.
The U.S. federal government is a big lumbering elephant, very powerful, but very slow. Look how long it took them to notice all the things Microsoft was doing. Remember the other suit, back in the early 90's IIRC, the one that didn't accomplish anything? We certainly can't count on the Feds to keep the software business competitive.
That's our job.
This case does no more than give Microsoft a black eye. We can destroy Microsoft, and all the rest of the closed-source world, and their paradigm. Just by continuing to make free software.
And on that note, I'm gonna log off and do some hacking...
------
------
You are in a twisty little maze of open source licenses, all different.
If they lose all appeals and the Supreme Court upholds Jackson's ruling, then then MS-OS (a.k.a. Windows, Inc.) is pretty much stuck with just selling, supporting and developing Windows on a vaguely even level with Linux and other operating systems (Apple may be persuaded to release an Intel port of Mac OS X; who knows). However, MS-AP (a.k.a. Microsoft, Inc.) will take everything else, including Office, Internet Explorer, Media Player, Direct X, Next Generation Windows Services (NGWS), the X-Box, whole shebang - and will have nothing to stop them from being completely and totally evil.
--
$x='S24;r)>63/* h@<5+oZ)32"5cz';$me='phroggy'x$];
$x=~y+ -xz+\0-Tx+;print$_^chop$me for split'',$x;
I recall Bush saying that he would essentially drop the charges if elected.
Bush has no such powers. If it were a criminal case, he could pardon the offender, but it's a civil matter. The moron Bush can go blow, President or not.
For some strange reason, a large majority of the public favors Microsoft.
That's why we don't put legal authority into the hands of the drooling sheeple. We have judges who presumably (at least sometimes) have clues. Otherwise you get mob rule as the majority decides to do crazy stuff like kill all the Jews or execute anyone caught with a joint.
A parliamentary democracy sucks, but it's better than what a "pure" democracy would be, which is insanity.
Small mistake over here. Socialism says: everything to the state. A strict socialist view on the economy is: "Nationalise everything", therefore MS := state company. By the way, this would be even worse: in a strict socialist economy MS would be allowed to keep its monopoly, although as a state company. Read an annotated version of 'Das Kapital' of Karl Marx if you want to know more.
A capitalist, supposing he is acting in a democracy, is normally (from the theoretical standpoint) a free market liberal. Of course he keeps his hands off of the market (businesses) as long as his capitalist system is not in danger.
A monopoly endangers that system since in the long run it can lead to an economic dictature. And an economic dictature, which by the way also implies a social one, leads to less free market.
So we end up with a dictature, in the "economically speaking" best case with a little capitalist flavour (Chile under Pinochet for example). A true believer in free market liberalism should also be for a minimum of market regulation, against too high concentrations of economic power.
Remember: capitalism/free market liberalism says you can move up on the social scale (that is/was its eternal argument against socialism which states the opposite - that's why to achieve mobility an "all overthrowing revolution" is required). Allowing monopolies would automatically mean a denial of this mobility.
Now comes the paradox: although the democratic (Clinton) administration is a little bit (for European standards it is) more left wing than a republican one its stance in the MS case is more capitalist/free market oriented than that of many republicans who are in favour of a hands off approach to this MS case.
The PIG One
The nice thing about Windows is: it does not just crash; it displays a nice little dialog box and let's you press 'OK'
They may have 60 days to appeal, but they also have a 90 day deadline to implement Judge Jackson's court order. Putting it off 60 days would give them only 30 days to implement the order if their request for a stay were denied for any reason.
Microsoft is a huge company and the 90 days that they have to comply with the order is probably fairly difficult as it is. They need to know immediately whether a stay will be granted. The rest of the appeal they want dragged out, as they can continue making their monopoly profits as long as it's on appeal. (Well, even when they're broken up, they'll be two monopolies instead of one - they'll still be able to get monopoly prices, though that may be somewhat limited by the conduct remedies).