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LinuxPlanet Interviews Robert Bork
Greg writes: "Robert Bork, former Supreme Court appointee from the Reagan era and a recent entrant in the MS antitrust case, did an
interview
over at LinuxPlanet. The topic? The Evil Empire's court settlement." Bork isn't actually new to the Microsoft case or to the subject of monopolies -- his legal experience makes this an interesting read, even for those who don't consider Microsoft an "evil empire."
Bork is widely acknowledged in legal circles as one of our country's greatest legal minds.
He is widely respected for his integrity.
He is a well known legal conservative and strong believer in strict constructionist interpretation of the Constitution.
Anyone who thinks that the Microsoft case is a left-wing attack on big business should pay careful attention to Bork's words. Whatever else Bork may be, he ain't no left-wing anti-business type.
"So it is not so remarkable that a noted conservative lawyer would see perfect reason for action to be brought against Microsoft for the transgressions we have all witnessed and experienced over the years; what is remarkable is that people would find such a position at all unusual."
I'm not sure I agree, at all. Alright, so from an intellectual standpoint, it's ridiculous that the public would find the Judge's position unreasonable, but from the Public's Perspective, it makes perfect sense.
Mircosoft Provides Software to the Large Majority of the Public that they Encounter Every Single Day for, in their mind, a reasonable price. Therefore, people who use this software have nothing against Microsoft, don't realize what it's doing to the industry as a whole, and keep going with their MSWord/Internet Explorer/WindowsXP Spyware.
The web has started to become "optimized" for Internet Explorer, but the public doesn't really care, because they aren't seeing the huge technological impairment that Microsoft is - they're only seeing the benefits.
If and when Microsoft really does make a PR mistake, or Linux finally jumps into the mainstream, I expect the "flyswatter of freedom" (from the article) to crack down on their heads, but for now, they're going to stay afloat because of public opinion and use.
Robert Bork is the #1 authority on modern antitrust law, with Richard Posner (who served as a mediator in this case) a close #2.
Modern antitrust law is essentially what Bork & Posner suggested would better protect consumers in a series of law beginning inthe late 60's. They pointed out that the current state of the law made no sense, conflicting wsith itself and the economics it dealt with (Brown Shoe, Bork's favorite: Brown & Kinney, with 5% and 1% of the manufacturing & sales markets for shoes, wanted to merge. DoJ blocked this (successfully with the USSC) on the grounds that it would allow them to sell a product of comparable quality at a lower price than their competitors . . . aren't you grateful for such protection?)
Anyway, Bork is seen as a rabid conservative, which is inaccurate (though he's now a conservative on many issues), but he wasactually a screaming leftist (borderline socialist) who learned some economics and changed his positions based on them--to achieve the original goals.
Bork argued that the sole legitimate test of the competition was whether it benefitted or hurt the consumer: if consumers will see lower prices from the merger of ten firms down to 3, than it is a pro-competitive merger. He also arugued that the law should protect competition, not the other competitors.
His antitrust rules are *not* republican--the Clinton administration pretty much took the same path.
hawk, esq.
Huh? This is Slashdot, right?
--
The Cap is nigh. Time to get a fresh new account.
The Honorable Judges Sporkin and Bork eat pork with forks, popping corks off ports while chortling over court reports of sports of a sordid sort.
"I believe in innovation, not litigation."
(I almost expected him to follow with "if the glove don't fit, you must acquit". But I digress.)
Anyway, this statement could have -- and probably DID -- come straight from the mouths of Microsoft's PR department, probably in the same envelope as a campaign contribution (to be fair, I'll bet Gore got one too).
Our best hope is that the President's advisors listen to intelligent conservative commentators like George Will, who wrote an excellent column in the Washington Post about Enron, in which he made the following point:
Capitalist economies don't spring up automatically, like crabgrass. They are dependent upon a complex set of laws. Capitalism is a government program.
Will was speaking about laws which require accurate financial disclosure so that people have faith in the market. But the same priciples hold for the right to fair competition. Without that right, where the success of a startup [e.g., Netscape] leading to its imminent demise by those seeking to maintain their control [e.g., Microsoft], why would anyone risk their money to enter the marketplace? The result in such a case is stagnation, and the loss of a healthy economy.
I'm a bloodsucking fiend! Look at my outfit!
Just read it.
For those who haven't, here is the summary.
Linuxplanet: Isn't the proposed settlement horseshit.
Bork: Yes, I'd have to say I agree with that.
Insightful - NOT !
This is a really good point. This case was about the browser issue.
Once upon a time, not too many years ago, there was real innovation in the browser market. People could barely keep up with the features coming left and right from Netscape, Spyglass, Mosaic forks, Cyberdog, etc., and features were piled on left an right. Forms! Tables! JavaScript! Java! DHTML!
Then Microsoft crept over the 50% market share mark. Now the new browser feature people get excited about is TABS, for Pete's Sake! They're still trying to get a decent CSS2 implementation done, ECMAScript is stagnant at best, and Java applets still don't work all that reliably.
And it's been a few years. There's no innovation to be found. Yeah, Mozilla has some froody features, and XUL may still kick ass someday, but if you want real innovation, you need competition, and any capitalist can tell you that. If IE had to compete on the open market they might even run lint on it.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
I actually read the article. Carefully. And damn if I don't agree with the grumpy old bastard.
Wow. Either this is a fever dream or reality has just warped.
Knowledge is power. Knowledge shared is power multiplied.
from: http://www.techlawjournal.com/atr/80421bork.htm
Robert Bork formerly practiced antitrust law, taught antitrust law at Yale Law School for nearly twenty years, and wrote what is perhaps the most influential book on antitrust law in recent decades. (The Antitrust Paradox: A Policy at War with Itself, New York, Basic Books, Inc., 1978.)
During the Watergate scandal, Archibald Cox (the first ever independent prosecutor, a la Ken Starr) faced down the Whitehouse in an (ultimately succesful) effort to unearth damning evidence of criminal activity by both President Nixon and Veep Spiro Agnew.
Nixon wanted to fire Cox, but it wasn't in his power to do so. As an Independent Prosecutor, Cox was subordinate only to the Attorney General, Elliot Richardson. So Nixon demanded that Richardson fire Cox. This was an appalling abuse of power. Nixon essentially threw out the rule of law to satisfy his political ends. In an act of great courage, Richardson refused to comply. So Nixon fired him. Then he promoted the Deputy A.G. to acting A.G. and gave him the same order --- fire Cox. Again, a refusal; and again Nixon fired the guy. Next in line at the Justice Dept was the Solicitor General. At the time, this was none other than our friend Robert Bork. Nixon made him acting A.G. and ordered him to fire Cox. Bork consented and fired him. As an added bonus, he sent FBI agents over to the Prosecutor's office to seal it off, temporarily shutting down the investigation of the President.
This was the famous "Saturday Night Massacre" --- the most serious constitutional crisis ever faced by the United States, in fact. Bork's decision to cave in to Nixon's unconstitutional power grab forever marked him in the eyes of many Americans, and not just Democrats, either. When Reagan nominated him for the Supreme Court, the possibility of having someone who had helped Richard Nixon flaunt the rule of law sitting on the highest court in the land was just too much for many to bear. And so he was borked.
and Microsoft dances away from this with a slap on the wrist. The only saving grace I can think of is that this will go a long way towards fueling the fires of Microsoft paranoia brewing outside the US. More non-US governments will look seriously for Microsoft-free solutions as it becomes crystal clear that the US goverment and Microsoft are sharing the same toothbrush and underwear.
That's a gross oversimplification. Microsoft wouldn't be worth jack squat if there weren't billions of .doc and .xls files out there that their products process better than anybody else's.
Why can't others duplicate Microsoft's products? Because Microsoft enjoys the dual protections of copyright and trade secrets. Without either one, competitors would swarm out of the woodwork and eat Microsoft's lunch because office software is a mature product that should be a commmodity by now.
How are the copyright and trade secret protections facilitated? By the heavy hand of government, of course. It is interesting that when the U.S. Constitution was written, there was no single technology such as software that could combine the two protections in such a powerful way. The powerful combination allows the barrier of entry into a monopolized software market to be almost infinite.
Take the example of Sun, who is giving away a capable office suite for free. Most people doubt that even at this price that they can significantly impact Microsoft's market share. This is largely because their handling of proprietary .doc and .xls files is less than perfect. This proves that microsoft's chosen pricing has little to do with the dynamics of this market.
In fact, I'd argue that if you can't even give a product away, it's not a market. There is no market for office software today. Just a government-facilitated fiefdom.
I'm not surprised that Bork opposes that joke of a deal. While he's certainly been a critic of antitrust law in general, he at least sticks to his principles. Many "conservatives" bash the antitrust case out of either deference to Micro$oft (a large campaign contributor) or sheer ignorance.
Many people overlook another conservative who chose to follow the law and base his thinking on the facts: Thomas Penfield Jackson...the judge in the original antitrust case. Jackson too was appointed by Reagan. In fact, he was appointed specifically to quash antitrust cases that came his way. But U.S. vs. Microsoft was just too compelling...they openly flaunted the law and even went so far as to fabricate evidence (the infamous video showing how difficult it was to remove IE). His findings of fact in the case, which were upheld by the appellate court, paint a picture of an extremely arrogant and socially destructive corporation openly engaging in socially destructive practices in clear violation of the law of the land.
I long for the days when there were still principled conservatives to be found in positions of power. I can respect an honest difference of opinion...but that's rare anymore. In a world where most conservatives are Enron conservatives it's nice to see someone take a principled stand (Bork's work for Netscape notwithstanding).
"You done taken a wrong turn."
-Bill McKinney, in Deliverance
Amendments 9 and 10 just spelled that out in neon lettering.
As far as "interpretability" goes, the 2nd is slightly vague, but when taken with the other writings and sayings of the people who wrote it, it becomes clear that they intended that the average Joe have access to weaponry. They didn't want a standing army, etc. Each male with a gun was part of the "militia," called up to defend the neighborhood/town/city/state/nation. Rather than have a standing army, the idea was to train teh regular citizenry to be the defenders of the nation. Those "other writings" aren't part of the Constitution, but all the other laws of the country are interpreted by the courts along with the "intent of congress," so including the "intentions of the founders" in adjudication of constitutional law is par for the course. On a strict reading it would seem to say that each state can have its own army, but armed gangs are illegal.
However: remembering that the constitution doesn't grant people rights, it only limits the government 's scope of actions by granting it specific, enumerated powers, there's no where in the Constitution that prohibits citizens from owning weapons. We would be able to own guns without the 2nd amendment at all. Assuming, of course, that the courts could also remember (alas, they cannot) that U.S. Citizens are not granted specific rights, but have all rights be default.
A clearer case is #1:
"Congress shall make no law" doesn't have much wiggle room in it.
Number 9 is pretty clear, too:
"Shall not." Gotcha.
However, the quality went down as the years progressed. Number 17, for instance, is a mess. It changed the U.S. from a Republic into a Representative Democracy. From a Federation of Soverign States into one big state. It should really be repealed.
It's pretty clean compared to number 12, though. Sheesh:
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
"the taking away of guns or limiting their ownership being contradictory to the existence of the militia"
The constitution cleary states the following.
1) Guns are neccasary in order to form militias.
2) Militias ought to be "well Regulated".
If your argument is that everybody ought to have guns thereby becoming a militia then you have to subject yourself to being "well regulated". I don't think you can have this both ways.
War is necrophilia.