Microsoft Appeals Anti-Trust to Supreme Court

wicket2001 writes "The AP is reporting that Microsoft has appealed their anti-trust case to the Supreme Court. Microsoft sent the petition to the high court two days before the case was to be sent to a new judge to decide what penalty the Redmond, Wash., firm should face."

Comments

Very Bad Move

[kajoob]

This decision was upheld unanimously by a very conservative lower court, there is no way the Supreme Court would overturn that. There are no higher judges, but even Supreme Court Justices will respect a lower court's decision if made that emphatically. I expect this to be denied cert, which essentailly means that the Supreme Court has voice their agreement with the lower court's decision without actually hearing the appeal.

Re:Very Bad Move

[pigeonhed]

hmmm. bad move less than 60 days to release of XP and now another group of court preceedings that will take time. This is standard and predictable. Any legal counsel would have recommended the same thing. Good move bad company.

Part of the FUD principle.

[Anonymous Coward]

Core to MS operating procedure is delay. This is simply yet another delay of the inevitable. But, it will give them time to come up with some other form of hukstery. The sad thing is, FUD works. As is being proven here.

Bork Bork Bork!

[Dancin_Santa]

Too bad Congress borked Bork, they'd have an airtight decision against Microsoft. As it is, MS has got some pretty heavy sway with the pro-capitalism (not necessarily pro-competition) majority of the Supreme Court.

Dancin Santa

Re:They have the money to delay.

[hearingaid]

this is a correct analysis.

The Supreme Court will deny the application for a hearing, correctly realizing that the best opportunity for a hearing will be after the remedy hearing. hopefully they will take an expedited appeal from the second trial.

It's all about timing

[reimero]

Unless the Supreme Court rejects the appeal out of hand in the next 2 months and attempted injunctions against releasing Windows XP fail, Microsoft wins, at least in the short term. IANAL, but if I understand legal proceedings correctly, the entire remedy phase is on hold until the Supreme Court rejects the appeal, vacates the ruling out of hand or hears the case. Typically, the Supreme Court takes several months to reach a decision on whether to put a given case on the docket. Microsoft's short-term goal is to extend the case into November, clearing the way for the release of Windows XP. It's a lot harder to put the genie back in the bottle, and both sides know this.

Regardless how you feel about Microsoft, though, this isn't good for consumers. The October release date has become much more than an arbitrary deadline, and XP will be released in whatever condition it's in. (I know, the same can be said about their previous versions of Windows, but this time there's a lot more than PR on the line!)

Personally, I don't think the Supreme Court will even hear the case. There doesn't seem to be any legal ambigity or any untested or controversial legal rulings at stake. A conservative, MS-friendly court ruled unanimously against Microsoft on all counts. As big and powerful as Microsoft is, I think the Supreme Court will simply reject the appeal without comment, leaving it to the lower courts. The Supreme Court doesn't like to get involved unless there are constitutional issues at stake, and there aren't any here.

They won't touch it

[alewando]

The Supreme Court hasn't exactly been lying low since the Bush v. Gore fiasco, but they they're not going to touch this one with a ten-foot pole. There's just no need for them to do so.

The Supreme Court's docket is entirely discretionary. They only hear a couple hundred cases every year, out of the thousands that get submitted. It takes years for a case to make its way up to the Supreme Court from the lower courts precisely because the Supreme Court's policy is to let all lower remedies get completely exhausted first and to let all the difficult legal issues receive one or two decisions from below.

They might someday hear a Microsoft antitrust case, but it's not going to be this one right now. Why would they jump into the fray now before the breakup measures are even decided? The case is even dimmer for Microsoft in light of the unanimous circuit court ruling. It's not unheard of for the Supreme Court to overturn a unanimous ruling, but they've almost never gone out on a limb and done so when there were alternatives like waiting for the wheels of justice to turn some more.

Instead of focusing on the Supreme Court, we should be focusing again on the upcoming battles in the district court. While it's decided that Microsoft is guilty of antitrust violations, whether that fact will create any lasting legal or economic ramifications has yet to be seen. It still could go either way: they could be broken up and fined, or they could just get another slap on the wrist with another toothless consent decree.

And with the possibility still open that Microsoft and the DOJ could settle out of court, well, we've got bigger things to worry about.

Re:They won't touch it

[sheldon]

First of all you refer to "before the breakup measures are even decided". I don't know if you haven't been paying attention but... there isn't going to be a breakup.

Even if the SCOTUS decides not to hear the case and it goes back to the lower court for remedy hearings, the appeals court has already made it clear that a breakup was unjustified. This was the one part of the case clearly overturned.

As far as the likelihood of the SCOTUS hearing the case. I don't think you can predict what cases this court will hear and how they'll decide. Certainly not after Bush v Gore.

It's quite possible they might hear this case if for no other reason than to get it over with quickly. The presence of this case is causing a great deal of stagnation in the tech economy and it would be good to finally clear it out of the way.

What if...

[Bonker]

WinXP ships, and the injunction is imposed against it after it has already started to move copies?

My ideas of the consequences - legal minds feel free to correct me:

1. Walmart, Babbages, Everyone else who sells software is required to 'yank' shelf copies to comply with the injunction. Most stores will be slow to comply, and then claim that they sold out before the injunction hit.

2. We'll have a 'limited edition' of WindowsXP in the wild. Pirate copies will run rampant online and on Ebay because 'the most popular OS' cannot be legally bought in stores, and MS will be in the odd position of having to try enforce their own injunction because they can't be seen as encouraging piracy, can they? The other members of the BSA would scream if they did.

3. After a few months, Microsoft will release something like Windows IR (Injunction Release!) online as an 'update' to existing copies of WinMe and Win2k. It will be an Internet Explorer 4.0 type release -- all the funcitonality of a new OS, all the FUD and anticompetitive bullshit, but Microsoft will give it away as a new product just to spite the Fed and its competitors.

4. ANOTHER LAWSUIT over whether or not MS violated the injuction by releasing WinIR (Say that one out loud!)

5. Microsoft releases much of WinIR under their 'shared source' license, locking hundreds, if not thousands of developers into MS-only development. Hey, if it's free, code for it, right?

6. After months and months and months, a judge finally gets the breakup to stick.

7. Because they won't let him make the rules, Bill takes his toys and goes home. Microsoft 'exits' the home operating system market, and concentrates solely on a 'Software as Service' business market. They sell Win200x releases on a yearly basis to people who want or need server software and are too dim to use a *nix.

B.

[Anonymous Coward]

Legalization of Marijuana

Sounds pretty unimportant to me. But if your life revolves around weed... well, each to their own.

I'd rather the Supreme Court review a case against a company who's actions touch upon many major sectors of the economy. Microsoft is so big that they have influence on the news/media. They affect your choice and price on various high-tech products, which in turn affects many people's jobs. They have a very real influence on people's retirement plans.

I for one think if a business is going to become that powerful, they should be under ethical scrutiny once in awhile. Who cares about a goddamn plant.

Why this should come as no suprise

[stuccoguy]

Microsoft has invested millions of dollars in rolling out Windows XP and .NET. They are well aware that the Justice Department will seek an injunction to stop the release of both of these technologies when the case goes back to the district court for a penalty hearing. They are not about to allow that to happen before XP and .NET are rolled out.

Their delay tactics have already resulted in the demise of the Netscape browser before relief could be granted. They know that if they can roll out XP and .NET before the district court can stop them it will be too late. You can't put the egg back in the shell. The district court will still be able to consider other remedies, but Microsoft will have already been successful in widely deploying new proprietary standards and other agendas such as new activation techniques, killing USB 2.0, strangling MP3, anddiscourage Linux/Windows dual boot systems.

Because these new standards and agendas will have been adopted by other hardware, software and service companies, the district court's ruling will have limited effect on the standards and agendas themselves.

Re:Microsoft was only playing by the outdated rule

[cpt kangarooski]

No, we're mostly capitalists, we mostly have a free market, but the goals of a decent society may not match 100% with the end result of a whole hog capitalist free market.

So finding the former better than the latter, we mold capitalism into something slightly different that gives us what we do in fact want.

MS broke the law, and they're good laws that have kept the country running for over a century. Late 19th century abuses of corporate power were really something, and I don't think that anyone wants to go down that road again. (save the very very few that would directly benefit from it, and those who fantasize about being in that elite)

Basically, we want all of the good, and none of the bad, and since the system isn't carved into stone, it's possible, though it requires a lot of manual fine tuning.

They actually do have balls

[mickeyreznor]

Remember, this is the same supreme court that angered 49% of the entire country without seeming to care at all.

How so?

[jdcook]

"This decision was upheld unanimously by a very conservative lower court, there is no way the Supreme Court would overturn that. There are no higher judges, but even Supreme Court Justices will respect a lower court's decision if made that emphatically."

The decision of the Court of Appeals may have substatial predictive value for how the SCOTUS will decide to grant certiorari or decide a case. But it is in no way determinative. This court has emphatically indicated that it may grant certiorari when all observers expected that it would not. This court has decided cases in ways that are not obvious to even experienced SCOTUS observers. Personally, I don't think they will grant cert either but I don't kid myself about it.

"I expect this to be denied cert, which essentailly means that the Supreme Court has voice their agreement with the lower court's decision without actually hearing the appeal."

Denial of a grant of certiorari in not a mechanism of voicing agreement without hearing the appeal. All that denying cert does is end the appeal proceess for whatever issues are on appeal. The court may or may not agree with the appeals court. It is possible that they disagree with the appeals court on the technical issue but agree with the outcome. They may be waiting for a better set of facts. They may think the issue is insufficiently important. There is no way to tell because the court doesn't say anything when it denies cert.

It is important to remember the effect of granting or denying certiorari. If the court grants cert than the decision it reaches becomes binding precedent on the entire country. If the court does not grant cert, then the court of appeals decision is binding precedent only on those jurisdictions that lie within its circuit. The decision may well influence decisions in other circuits but they are not bound. When there is a disagreement on a point of law between the circuits, the SCOTUS will often settle the matter when a case with the appropriate facts and posture petitions for certiorari.

Finally, I don't see why you think this is a bad move. Does Microsoft have something to lose by exercising their right to appeal? And if they do, is it offset by whatever they gain from the appeal? Just because an appeal doesn't produce the ultimate result of reversal doesn't mean it doesn't produce other, lesser benefits.

Re:Man, you're kidding right?

[Vladinator]

I used to. Then I found a machine on pricewatch that was both less expensive and better than the one I had just built. That pretty much ended the days of building my own machines. :-)

The real kicker? My wife has the less expensive machine and I have the three I built. :-)