Microsoft Loses Delay Appeal

cheesethegreat was the first to submit that Microsoft has lost their appeal to delay their case by requesting a review with the Supreme Court. We mentioned the appeal a few weeks ago. The link doesn't say much more than that the appeals court denied the delay.

Comments

Re:what do m$ spend all the pc tax $$$ on?

[gorilla]

And the result of all this R&D is ... Clippy!!!

Re:So? OJ connection...

[powerlord]

will last longer than the O.J. debacle.

But in this case, the glove not only fits, but it comes bundled with the bloody knife and bodies.

Yes... but in order to actually open the bundle and see the contents you have to agree to the EULA which requires you to find in favor of MS for all criminal and civil cases.

Personal opinion.

[styopa]

What I personally think would be the best solution is as such.

• Most importantly is that one needs to allow for choice. If MS wants to integrate a web browser, mail utility, isp, etc..., let them, but allow for choice. If they want to integrate then they must release all information on how the integration is done, and allow for third parties to replace the MS component with their own, seamlessly. Ie, if someone, or an OEM, wants Eudora instead of Outlook, then they should be able to completely replace Outlook with Eudora and not lose ANY productivity/compatibilty. Third party products should have the ability to merge seamless into MS products. Merging isn't always bad.
  
  1. Nautilus and Mozilla. Sure it is slow, but it also has a lot of potential.
     
  2. Any flavor of UNIX or Linux requires that a mail program be installed. They don't have to be set up, but they have to be installed.
     
  
  Other things that I feel should be done are.
  
• Force MS to release all of the APIs. Have a group of coders from third parties review MSs source code to insure that all of the APIs have in fact been released. Until they give the okay no product leaves the door.
  
• All OEMs are treated the same. Same price for OS, all given the OS on the same day. If an OEM wishes to us the OS, MS cannot refuse even if the OEM is also shipping other OSes. Deals must be made in the open.
  
• Office products, MS Office, Internet Explorer... must be released for all the OSes that it will support at the same time. Must include support for other OSes other than Windows and MacOS. Including either a Linux or a major UNIX faction (Sun, IBM, etc...).
  

Re:I question whether MS really even has a monopol

[jd]

However, 99.9% of the human population uses the x86 architecture, in a desktop-type mode.

The server market is just not significant. Very few people run their own servers, and companies don't upgrade their servers/routers/firewalls that often. The cash-flow, per unit time, is very small, even though servers (per se) cost a great deal.

The embedded market is also a limited one. Many embedded systems are embedded precicely because replacing the hardware or software would be prohibitive. As such, there's just no money in it. It's less a well, and more a puddle.

Whilst it is true that anybody "can" write a desktop OS for the PC architecture, in order to be competitive, you MUST have OEMs who support it and software houses who develop for it. Many a good system has died, because it was useless to the users. But OEMs are under intense pressure (and have been placed under contracts later ruled illegal) to ONLY supply Microsoft products. Software houses, such as Netscape, SpyGlass, etc, have either been pushed out of business, bought out completely, or had their products stolen. (Microsoft has been found guilty of software theft, in the past, most notably with the disk compression system in DOS 6.0.) Under those conditions, no competitor can thrive, or even survive.

Microsoft pretty much owns TV-based Internet access, via WebTV. And that means that it has a very strong grasp on Internet-aware appliances, once those develop. After all, that is what WebTV essentially is.

As for the market deciding -- it no longer has the power to. For the market to decide to switch away from Microsoft, EVERY SINGLE COMPANY, organization, household, etc, that uses Microsoft products would have to change at the same time, in the same direction, to an alternative that already supports the current Microsoft standard. Failure to do so would mean total chaos. Documents, spreadsheets, databases, etc, would be unreadable. Networks would stop working. Printers would stop printing. In short, civilization is as hooked on Microsoft as any heroin addict is on their drug. Microsoft-specific protocols, such as SMB and NetBEUI, and Microsoft-specific file formats, permeate everything. Any attempt to go "Cold Turkey" would be every bit as lethal as it would be for that addict.

THIS, in my humble(?) opinion, is the great threat Microsoft pose. Their products are just products. The label isn't important. And money, for corporations, is just play-stuff, anyway. The numbers mean nothing more than the numbers on a pinball machine.

BUT the addiction factor. Now, that CANNOT be escaped. Microsoft can tell the market exactly what to do, and the market will respond. The price of failure would be too great.

IMHO, this trial's focus on the Sherman Anti-Trust laws is all fine and well. But the real issues that keep getting mentioned are those addictive ones. Has Microsoft made withdrawl just too dangerous for anyone to contemplate?

If the answer is yes, then the Government damn well better "interfere". A Government exists to prevent dictatorial power-blocs from forming, where that dictator has created conditions such that refusing to be dictated to carries a penalty sufficiently high that your average person will comply.

I dislike the "libertarian" notion of removing "Big Government", alone. It creates a power vaccuum. Such a vaccuum created the monstrosity we know as Microsoft. Power vaccuums are BAD. Even if the power that was in them was "bad", the space left behind when that power is gone is MUCH worse.

TRUE Libertarianism would have to include limiting ALL entities, not just the Government. Otherwise, you replace an elected evil that has legal limits with an unelected one that has no limits at all.

I don't want to live in William Gibson's Neuromancer nightmare, or the sickness of Max Headroom. You might, and that's your choice, but frankly the thought of corporations becoming the latter-day Feudal Lords and Barrons is terrifying to me. You really, truly don't want to back-slide into a Feudal society. You just don't. If you aren't sure why, look through some English history books, some time. Specifically, look up events such as "The Peasents Revolt", the massacres perpetrated by King William and King Rufus, the endless horrors of the Tower of London, and the numerous regional wars (such as the Wars of the Roses).

If companies such as AOL and Microsoft are not subject to law, what's to stop them from buying up a bunch of mobile rocket launchers, and wiping out all who oppose them?

Am I going too far? Maybe not. In the end, what is the difference between destroying a competitor through intimidation, deceit, and industrial espionage, or destroying them with a short-range ballistic missile? The missile would probably work out cheaper, have a much higher chance of success over a shorter time-span, and be much more influential in how other companies act in future.

If the corporate wars have no bounds, then sooner or later, it's going to expand beyond mere price wars, verbal threats and forged video tapes.

Not a surprise

[tadas]

This isn't exactly a surprise. The Supremes would really have to find something way wrong procedurally to override a *unanimous* Circuit Court opinion on a limited procedural question.

The common-law tradition is, in some strange way, like the open-source development process -- it tends to favor "working code". There is a strong bias in the system against mucking with what lower courts have done, and this is done only when the lower court does something that seems to be way out of line. You can see this in what the Circuit Court did to the trial decision -- it found that Judge Jackson was out of line in how he determined the remedy, but didn't throw out the findings of fact (and tossed it back to a different judge for the penalty phase).

I think that the fact that the Circuit Court's "en banc" decision was *unanimous* cut a lot of mustard with the Supreme Court.

PS - When I started this post, there were no posts. Since I tried to actually put some (admittedly not a huge amount) care into what I was saying, I guess this wont be a "First Post". I tried, though...

Re:Positive or negative?

[ergo98]

This should not delay XP and that would be harmful to consumers.

What needs to happen with this is that equilibrium needs to be restored in the computer marketplace through restraints put on Microsoft limiting how they can limit customers: Namely that hardware vendors that integrate the Windows operating system have every right to modify the desktop, add/remove programs, or develop relationships with other companies for cross-promotion. In Dell starts shipping computers with desktops full of third-party tools, and they replaced IE with Mosaic and removed notepad, then so be it: Let reviewers hash them out and sell the benefits versus detriments to the massive number of vendors which we as consumers get to choose from. Personally, while I don't like Java myself, I think it would be great if vendors preinstall the newest Java Runtime Environment for their customers.

Re:Why don't we make this simple...

[Software]

Excellent idea. I say we call them Micros~1, Micros~2, and Micros~3.

And in other Slashdot news

[Anonymous Coward]

A Microsoft employee was found walking down the streets of Bethesda, Maryland. More information to come.

Re:So?

[ReelOddeeo]

A delay would have put this trial off by what, a couple of weeks?

Maybe longer. But the important point is that they are trying to put it off in order to prevent justice. If they can get XP into the market place before a new remedy is pronounced, it gives them a big advantage.


This will be a 3-year long trial, while Microsoft calls in experts

This is what Microsoft wants, not what is good. It is good that the court isn't going to let MS stall this out forever.


Microsoft...., trying to protect the money that they fought so hard to earn

trying to protect the money they fought so hard to extort from us. Everyone is so happy to pay higher prices for lower quality.


We're never going to see a just resolution to this

Sure we could. Nuke the MS campus.


so what does it matter if they aren't delayed a few weeks?

Because MS might be able to rush XP out the door to further remove competition and prevent innovation.



--
Our father who art in Redmond,
Microsoft be thy name.
Thy monopoly come, thy chokehold be complete,
throughout the earth as it is in the US.

Give us this day, our daily license renewal.
And forgive us our bug reports,
as we forgive our system crashes.
And lead us not into competition,
but deliver us from innovation.

For thine is the control, and the power,
and the greed forever.
Amen.

the text of the ruling

[sethg]

Upon consideration of the motion to stay the mandate, the response thereto, and the reply, it is

ORDERED that the motion be denied. In order to obtain a stay of the mandate pending its petition for certiorari, Microsoft must show that the "petition would present a substantial question and that there is good cause for a stay." See Fed. R. App. P. 41(d)(2)(A); see also D.C. Cir. Rule 41(a)(2) (movant for stay of mandate must provide "facts showing good cause for the relief sought"). For the reasons stated in the appellees' response to the motion for stay, it appears that Microsoft has misconstrued our opinion, particularly with respect to what would have been required to justify vacating the district court's findings of fact and conclusions of law as a remedy for the violation of 28 U.S.C. 455(a). We need not decide, however, whether Microsoft's objections constitute a "substantial question" likely to lead to Supreme Court review, because Microsoft has failed to demonstrate any substantial harm that would result from the reactivation of proceedings in the district court during the limited pendency of the certiorari petition. See Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974); Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).

The Clerk is directed to issue the mandate seven days from the date of this order. See Fed. R. App. P. 41(b).

(PDF here.)

What do you mean "lost their appeal"?

[Anonymous Coward]

They never had any as far as I'm concerned.

So?

[Wind_Walker]

All the delay would have done was postpone the inveitable. As it is, there's going to be a long, drawn-out trial while Microsoft dances its lawyers around and circles the wagons, trying to protect the money that they fought so hard to earn.

A delay would have put this trial off by what, a couple of weeks? Wonderful. This trial, and mark my words, will last longer than the O.J. debacle. This will be a 3-year long trial, while Microsoft calls in experts, and the DoJ calls in rebuttal experts, on and on ad absurdium.

We're never going to see a just resolution to this, so what does it matter if they aren't delayed a few weeks?

Re:Splitting Windows... bad idea.

[rgmoore]

Splitting up Microsoft, all in all, is just a bizarre way of applying century-old law to this problem.

Actually, splitting up the company is a very simple and pragmatic way of solving the problem. Consider what the problem is: Microsoft has a monopoly on PC operating systems and they're illegally using that to expand their monopoly to other kinds of software by bundling that software with Windows. There are basically three things that you could consider doing to remedy the problem:

1. Impose a fine large enough to convince them not to do so again. This has the problem that it's difficult to determine how big a fine that would be. MS has shown a desire to continue bundling software with Windows even though they're still in the penalty phase of a trial for doing just that. They don't seem to be getting the message.
2. Impose a conduct remedy. This basically means putting a government regulator inside MS to decide what they are and aren't allowed to include in Windows. You can bet that there would be constant fights over each and every decision.
3. Split the part of the company that's making the OS from the part that's developing applications. This would eliminate most of the motivation for the illegal actions and thus minimize the need for future lawsuits and regulation.

IOW, far from being the most intrusive and legally costly strategy for dealing with Microsoft, splitting the company in two as the government proposed is likely to be the least intrusive. It cuts to the very heart of their illegal actions and should be effective in stopping it from happening again in the future. Seems reasonable to me.

I'll get you and you're little Justice dept. too.

[Darth RadaR]

"Some trial watchers have characterized Microsoft's recent legal moves as part of a broader strategy to prolong the court proceedings and delay any antitrust actions, including a court-ordered block of the release of Windows XP, until after the product already is in the marketplace."

Kinda makes it sound like XP is some sort of evil master plan instead of some grand improvement on Windows.

I can picture it now (swirly effect)

Steve: Master Bill, the Justice dept. is coming to attack us for our evil marketing practices and thwart our release of XP.

Bill: Call my Flying Lawyer Monkeys. (speaks to head lawyer monkey)This Justice department *must* be stopped. Take your Flying Lawyer Monkeys and hold them off until Oct 25 (Dec 21:). If we can't get an appeal, then make sure we can get a delay. Because after Oct 25, XP will be released and our power solidified. Then the world will be powerless against us.

Fly, my little Flying Lawyer Monkeys, fly!

Judge Jackson's last laugh

[Everyman]

Am I the only one on earth who thinks that Judge Thomas Penfield Jackson knew what he was doing when he talked to the press?

Fact one: Jackson split off his statement of facts from his statement of law. The statement of facts was very competent and comprehensive.

Fact two: He didn't start talking to the press until after the statement of facts had been filed.

Fact three: This case is huge; it's the biggest anti-trust case in 100 years. There is an enormous amount of money behind Microsoft. Jackson knew that there was zero possibility that the case would be a slam-dunk on appeal. The higher courts have to answer to that much money to some extent; it's impossible to ignore it in a capitalist culture, particularly when soft money elects (read: appoints) Congress and the President.

BE IT RESOLVED, that Jackson had to throw a bone to Microsoft. He gives something for Microsoft to chew on, and he gives the higher courts a way to appear that they are carefully considering the legitimate interests of Capital.

So Jackson threw a fake drug-store doggie bone to Microsoft by talking to the press. They chewed happily on it for a year, virtually ignoring the hefty record of facts that had been compiled at the trial. The issue of Jackson's prejudice was highlighted by Microsoft in their appeal, setting the stage for the Circuit to unanimously affirm almost all of the important facts, while slapping down Judge Jackson.

All the media bite down on the same fake doggie bone. Microsoft thinks they won, because the appellate decision was superficially ambivalent so that the media don't bother reading the record. Meanwhile, the important facts are upheld unanimously, and it seems unlikely at this point that the Supremes will even hear the case.

Here we are, 15 months after Judge Jackson's structural remedy. The remedy is thrown out, but the case was so big that something had to be thrown out in any event. Jackson's victory is that he got the least significant decision he made thrown out, by carefully orchestrating the appearance of prejudice according to a precise time table.

Here we are, 15 months later, and Microsoft has run out of delaying tactics. A new judge will be appointed who is required to do something major, because the facts have been affirmed unanimously and are not within his purview to challenge. He has merely to appear fair-minded, and his decision with respect to remedies will stick.

Stick that in your ear, Microsoft.

Arrgh, the feds are hypocrites....

[weave]

They have the perfect damn weapon. I say this everytime this topic comes up.

Hey you stupid feds: JUST STOP BUYING MICROSOFT'S STUFF

The federal government should just move to a different competitor. I read that all fed agencies shovel over a billion a year at Microsoft in various license fees. Imagine how much a billion a year would help another software company become a viable competitor to Microsoft.

They don't need the courts, use the damn marketplace...

Bill Gates makes everything clear (from CNNfn)

[ackthpt]

However, the court affirmed Judge Jackson's conclusions that Microsoft does have a monopoly in the market for computer operating systems and maintained that monopoly power by anticompetitive means which violated U.S. antitrust laws.

Then..

In a news conference Thursday afternoon, Microsoft Chairman Bill Gates said he was pleased with the ruling, which he claimed "removes the cloud of breakup from the company, reverses the tying claim and says clearly that we did not attempt to monopolize the browser market."

It's a wonder his nose hasn't grown a yard by now. Is anyone still unclear on _why_ Gates and Microsoft enjoy such a negative following on Slashdot?

Why don't we make this simple...

[kitmarlowe]

Instead of separating MS into an OS division and a software division, which just creates two monopolies, why doesn't the DOJ just break them into three identical companies. Each company will hold the same IP rights and can sell and market anything currently being done by MS. Make three companies all selling the same thing and you really will help consumers by forcing giants to compete with each other, thereby driving prices down and reliability up.

Of course, then there would be 3 MS's to hate.

For those hoping for an injunction.....

[4n0nym0u$ C0w4rd]

don't hold your breath. Our legal system is unbelievably slow and unwieldy, getting an injunction issued before October 25th is not going to happen no matter how anti-competitive Windows XP is. If there is an injunction issued in time, Microsoft will ask for a temporary lift on that injunction so that it can appeal it and the lift will be approved, leaving them free to begin shipping XP which will make any further attempts to stop XPs anti-competive features moot.

Yes, eventually Microsoft will lose several cases and exhaust all appeals, but I firmly believe that by the time the first case is finally over I (17 year old high school Senior) will be out of college and possibly even a husband/father. The Open-Source and Free Software community can not sit arround hoping for the courts to "kill" Microsoft. Instead, Microsoft must be "killed" by the production of incredible Free Software that totally blow any proprietory products out of the game. There is no reason why this cannot be done, after all Open-Source projects have the advantage of having MANY more developers than any company can hope for. If more developer put forth a serious effort to better existing projects those projects could easily outshine any proprietory competitors.

The main problem with most Open-Source software is it is always playing catch-up to proprietory software. Open-Source developers need to design original and innovative features as well as incorporate existing features. A great start would be Linux Only games, but not just any games, incredible FPSs, RPGs, and Racing Games. Trust me on this, make a great word processor and Joe Sixpack won't give a flying fuck, make an advanced and extremely gory FPS thats only available on Linux, and Joe Sixpack will have the newest copy of Redhat (or any other Distro) with 2 hours of the announcement.

In conclusion, the fall of MS will only be brought about by the development of great, solid, and innovative Free Software (especially in the entertainment areas), not by the courts.

Re:So? OJ connection...

[ackthpt]

will last longer than the O.J. debacle.

But in this case, the glove not only fits, but it comes bundled with the bloody knife and bodies.