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: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.

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: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. :-)