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Microsoft Seeks Dismissal with 9 Dissenting States
zalix writes "Microsoft is seeking a dismissal of the
case brought by the 9 States who have refused to settle. In court papers filed
yesterday Microsoft claims that the states have no contitutional authority to
bring such action stating that "Permitting the nonsettling states to seek
sweeping, nationwide relief under the federal antitrust laws and would raise serious
constitutional questions," They go on to state "This would destroy Windows desktop operating systems as a stable and consistent development platform,"."
They've committed crimes...
They've been caught...
They've been charged...
They've been tried...
They've been found guilty. Twice.
Someone hang them. Please!
"To make a mistake is only human; to persist in a mistake is idiotic." Cicero
So what they're saying here is that when free software succeeds, they can't compete. If ever one questioned whether Microsoft feared free software, this should quell such doubts. They know that as soon as the source is available better products can and probably will be made. And apparently that's competition they can't handle. (Yes, this is toll-like, but I kind of like being a troll sometimes. My next point is hopefully better.
Also, their objection seems ill-founded to me. If they wish to complain that these states shouldn't be able to bring an anti-trust action that has national implications, I'd want to know if they'd objected to the original 18 states being included. That is, wanting to eliminate states from the equation seems to say that the DoJ is the only body that should be taking Microsoft to court, in which case they should have objected to the original 18 states. Taking issue with the inclusion of any states at this point seems like wanting to change the rules you had tacitly accepted after the game has been played for several years.
Curmudgeon Gamer: Not happy
Just because they don't sell it, doesn't mean they don't make money on it. The browser is used as a tool to divert users to their services such as Expedia, MSN, Carpoint, and so on, which in turn can make money for the company.
Now before you flame MS, Real, Netscape and AOL all do the same thing - the product is free, but one has to do quite a great deal of cleanup after the installation.
AOL IM and Netscape - Delete QuickLaunch, Delete IE toolbar button, delete Favorite, delete Try AOL shortcuts
Real - Unassociate it with all the media types, get rid of "notifications", delete Favorites and QuickLaunch
At least in case of IE, all I have to clean out are the favorites it creates, in Media and Links. Not that bad.
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The hilarious and refreshing adbusters site claims that back in the day when a corporation exceeded its powers or ceased to serve the public interest, its charter was revoked and its very right to exist was nullified
Their main point is that corporate personhood--which grants corporations some rights as individuals--has effectively eroded the rights of real individuals. Since corporations have vast resources to vigorously defend their rights, they exercise more rights than you and I.
I think that we shouldn't fixate on Microsoft; there is a wider problem of corporations becoming too powerful in general. Microsoft is a symptom.
My handle breaks slashcode, what does your handle do?
Netscape and AOL all do the same thing - the product is free
Because they are forced not to sell it.
Netscape doesn't sell it's product because Microsoft's illegal dumping of the Internet Explorer product onto the market flooded the market with a cheap alternative and changed the rules so that to succeed, competitors had to rely on a business model that included giving their product away. They failed. Netscape is dead; AOL bought them. The only commercial browser left is Opera, who subsists on the scraps of the market.
People have lived under Microsoft's monopoly so long that they've forgotten how competition was supposed to work. It's sad.
"The problem with the French is that they don't have a word for 'entrepeneur'." -George W. Bush
Is this really newsworthy?
The obvious legal tactic when facing any lawsuit is to file a dismissal motion. And, in said dismissal motion, they come up with (make up) any arguments in support of the motion that they can. And said motions are generally denied, and the legal proceedings continue on.
BTW, IANAL
Think For Yourself. Question Authority.
They never change their tune, do they? The "stable and consistent" quote is specifically in response to the requirement to strip middleware from the OS. Yes, yes, we've heard it before; there is no OS, it's all completely integrated, yadda yadda. I'm sure many of us are familiar with just how "unstable" (or otherwise) an OS without applications can be. That aside, it seems to me that if distros based on a stripped down OS and middleware from third parties really were to suck as much as Microsoft claims they would, then the principles of the free market would protect their fully featured version. Remember, nobody's asking them to stop selling their "all microsoft, all the way" distro, just to provide a stripped down version as well.
Sure, if they want to give up and let someone else take over the browser market, they can stop investing in IE. They're saying that if they can't play by their rules, they won't play at all. You can sort of see their point: having their IP forcibly open sourced isn't really fair. Well guess what: that's the idea. This is a punishment. Microsoft have been found guilty of using Internet Explorer as a weapon to destroy Netscape. The penalty is to disarm that weapon by making it available to everybody. It's not meant to be fair, it's meant to be a commensurate penalty. I also note that it's not a case of Microsoft giving the source away, just making it available for scrutiny and licensing. Heck, maybe nobody will want to license it after they've seen it.
In case anyone's interested, the actual States' proposal is here. It makes for pretty interesting reading, mandating the distribution of a Java VM with Windows, auctioning the rights to develop Office for other operating systems to a third party, and actually complying with standards, rather than just claiming that being 95% compliant is close enough (e.g. J++ versus Java).
Before you start reading it, remember one thing: Microsoft are guilty. They are convicted monopolists, and they have repeatedly ignored previous behaviour orders. This remedy is meant to punish them, and to help their competitors at their expense. They did the crime, now they have to do the time.
If you were blocking sigs, you wouldn't have to read this.
If their stable development platform would be destroyed....then it would be the same as they have destroyed countless other stable development platforms/programs with their monopolistic practices.
Justice isn't about revenge and I realize that. But you can't destroy market segment after market segment and when we finally want to penalize you for it, you whine and say you'll lose. Yeah, that's the whole point. What do they want, a slap on the wrists again? It sounds like it to me. The only constitutional issue I see is if we do nothing. Then we would be allowing an abusive monopoly to become acceptable and a part of our life. And Microsoft (avoid conspiracy theories, this is a simple fact) wants to become of our daily life as much as possible. PCs, internet, cell phones, TV, gaming systems, you name it, Microsoft wants a piece of it. They want to become one of those companies like a power or utility company - completely integrated and absolutely necessary in our life. It's not just horizontal and vertial integration of markets MS is after, but rather, integration of everything. (Making the Bill Gates Borg icon all the more appropriate, I think.) If we let them continue down this course it would be unhealthy for the american (and international) economy. No one company should be so big and have control over as many markets as MS has and wants in the future. I'm not some conspiracy freak or rabid MS-hater, these are simple facts.
If someone used intellectual property in an illegal manner to create an illegal trust or monopoly, I can see it.
Linux users can't really make a monopoly as there is no controlling body, just a distributed group of independent and mostly unpaid coders that happen to be cooperating for kicks - no single company or person really has any real code, if there were such, others can take the code and go somewhere else.
You assume 41 states are against this. That is how they "MS" wants you to read that. I havent heard any of the 41 states complain.
Get a free ipod.
Netscape doesn't sell it's product because Microsoft's illegal dumping of the Internet Explorer product onto the market flooded the market with a cheap alternative and changed the rules so that to succeed, competitors had to rely on a business model that included giving their product away. They failed. Netscape is dead; AOL bought them. The only commercial browser left is Opera, who subsists on the scraps of the market.
Suppose a OSS GPL'ed browser was super popular 5 years ago? Then Netscape *still* couldn't make money off it since people would use the free alternative.
To put things in other perspective. How much money is MS loosing to GCC or media players like Winamp?
It swings both ways!
I think what pisses trolls like you is that its MS that took advantage of it [e.g. you're stupid to not have thought of it].
Stop being a sore loser and just try to be a more positive influence!
Tom
Someday, I'll have a real sig.
Yes, but is he hung?
That might allow him to be screwed more.
If California gets its way, you might be required to.
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits
So what they're saying here is that when free software succeeds, they can't compete.
IE is free software. Just ask Netscape.
If ever one questioned whether Microsoft feared free software, this should quell such doubts. They know that as soon as the source is available better products can and probably will be made. And apparently that's competition they can't handle.
No, what they are saying is that they paid for the development of IE and don't want to be forced to give away their intellectual property. They don't want there to be a Linux version because the availability of IE in Windows gives them a market advantage over Linux. Say what you want about IE, but there are many sites, including e-commerce, that don't work correctly under other browsers. I don't care why. It's simply true. I run Opera and have to switch to IE occasionally for that reason. My friends who run Mozilla and Netscape report the same thing.
You need to look past your "open source rulez!" tattoo and think like a business person. Microsoft does not want to invest man-years in a wildly popular software product and then give the source away. That's not surprising, hard to understand, or indicative that they feel technologically inferior to the herd of cats that is the open source movement.
Now, in light of the verdict, the question must be asked if this is a fair remedy. I believe that it is. But it's not enough. I think that all Microsoft data file formats need to be open-source and that any change to a file format must be made public at least six months prior to release of a product (e.g., Office) that uses said format.
P.S. I have 50 Karma points so I don't have to be nice for a while. Mod this down as flamebait or troll if you wish.
This is the first, of likely many, legal tactics that MS is going to use to prevent the ordered release of the Windows source code. As their argument actually has a minor bit of merit, the courts will have to investigate and argue their position. This means that MicroSoft's lawyers have some time to come up with their next time wasting strategy while they maintain their monopoly. Each time their arguments get shot down, they will come up with another argument which will bog down the entire case again and again until one of the following happens:
- The states capitulate to a not so devastating settlement
- The DOJ screws up and loses one of the arguments
- Microsoft screws up and loses
It's likely that we will not see an end to this case within this decade...
Wherever you go, there I am...
Your friend is totally incorrect, so incorrect that I would question his or her fitness to practice law in the United States.
If the states tried to try MS in their state judicial systems and then apply any settlement country-wide, THEN your friend would be correct. The whole point here is that the states are in FEDERAL court. Which is where any party can go to seek the Federal Governement's involvement in matters that can't be handled at the state level.
Your friend seems to feel that states are not allowed to bring suit in Federal Court. Utter nonsense.
When you are going head to head with a 1000lb bear it's probably best to lay down cover your head and get trampled. At least then you live. Problem is that most companies when failing attempt to pour more money into a losing strategy instead of finding a new strategy. This was Netscapes downfall. They continued to pour money into a failing, non-compliant, buggy product (4.x). Once they began to make the turn around with NS6/Mozilla it was pretty much too late and they needed someone with deep pockets to bail them out (AOL). So now it's a battle between the evil empires. One controls software on 90% of machines, the other controls almost every other form of media and the largest group of internet/im users. Which 1000lb bear will be the one to trample us to death and bury us in a shallow grave for later consumption?
"Do not be swept up in the momentum of mediocrity." - anon
Since Microsoft has been found guilty and the courts just need to determine a punishment, why does Microsoft have to accept it? Who ever asks the defendent if they accept the term of their punishment? Of course the defendent won't want to accept the terms, but they shouldn't have the option of choosing their punishment, because they are guilty. They aren't higher than the law, and once the prosocution and the judge agree on a punishment, it should then be forced on the defendent.
This whole process of Microsoft having to agree to a settlement is pointless, and a waste of time, and I don't see why they even have to agree to it, it should just be forced on them.
Things you think are in the Constitution, but are not.
If the 9 states' disagreement with the other 9 states settlement constitutes making rules that apply to other states, then what is the converse? Would not the settlement by 9 states, by being binding on all states (if such is the case) be violate the same rule?
You can't have it both ways, either there is a problem here - in which case there can be no settlement either way - or there is no problem here and the case continues to be resolvable either way.
To hear the gods laugh tell them your plans.
I would also add that while I am no friend of MS, and think they should suffer badly for their transgressions, this whole "give us your code" thing going on in the settlement talks strikes me as trophy-hunting.
It somehow seems cheap and beneath us to be running around saying "You were a bad boy, now you need to give us all your code."
Hot Damn! It's the Soggy Bottom Boys!
They do have a serious point: as a policy issue, individual states cannot be determining natiional issues, and shouldn't generally have standing to enforce national laws.
However, the actions also violate the laws of the individual states, and they *do* have standing to enforce those.
Additionally, taken to its extreme, microsoft's argument would seriously damage the notion of precedent. The states are suing because their citizens are damaged. They do not find the proposal by other parties to the suit adequate to solve the problem, and like any other plaintiff, can stay out of an inadequate settlement entered by the other plaintiffs. If they *do* prevail in showing a stronger remedy is proper for themselves, then the judge has the power to apply it nationwide.
Microsoft has a point, and a reasonable argument--it's just not as strong as the arguments against it.
hawk, esq.
I would also add that while I am no friend of MS, and think they should suffer badly for their transgressions, this whole "give us your code" thing going on in the settlement talks strikes me as trophy-hunting.
It's hard to come up with another option to address the wrongs. Microsoft crushed Netscape by bundling IE with the OS while Netscape had been charging for their browser. The average user looks for "a browser", not "a better browser" so Netscape was left out in the cold.
As a result of Microsoft's dominence of the browser market, combined with proprietary extensions (ActiveX, VBscript, etc.), web sites were written to support IE rather than a generic HTTP-compliant browser.
Now Microsoft is using the reliance on IE, and other proprietary products like Office, to keep Linux off of the desktop. Given that the browser was central to the trial, open-sourcing that would help put things back on an even keel.
In the future, I think that the Microsoft should be required to document and release all data storage and transmission standards. If that is not done, this pattern will be repeated over and over.
Why do people want the source code to Windows?
Of course, it means you can poke around and see how they do things, but since no-one else builds a platform in quite the way Windows is, I don't really see the point. Plus, Microsoft are going to fight long and hard not to open up their code.
So, let them keep it closed.
However I would have thought that forcing Microsoft to open up, document and distribute for free the file formats they use (doc, xls, ppt and so on and so on) for then next, say 25 years, would be far more advantagious to others. In other words, they cannot lock users into their own formats ever again.
After all, once other applications can load and save Microsoft formats as well as Office can then surely then it would allow them to break onto the desktop and so foster proper competition?
Avantslash - View Slashdot cleanly on your mobile phone.
It looks like you believe in freedom of speech. How about freedom of association? How about the freedom to contract? Can I get together with a bunch of my friends and form an association called -- say -- "Microsoft Corporation"? With contracts specifying that we delegate to the officers of the association the power to exercise some of our rights on our behalf? And contracts between that association and other associations and individuals, that agree to deal with the association as a unit as far as debts, liability, and so on are concerned? How is the government involved there?
It looks like you believe in a right to own property, by which you apparently mean physical property. What makes the right to own physical property more "inalienable" than the right to own intellectual property? Certainly there are functional arguments (ideas cannot be used up, etc.), but those have nothing to do with "inalienable rights".
There's no such thing as an inalienable right. There are only social and legal conventions. You have a "right" to free speech because the majority of society recognizes that right, and has agreed on a legal system to support it. You have a "right" to own property because the majority of society respects that right, and has agreed on a legal system to support it.
We can argue about what kind of social and legal conventions we should have. But let's not draw arbitrary lines in the sand and say some conventions are as fundamental as laws of physics and other conventions are "created by government".
-- Some things are to be believed, though not susceptible to rational proof.
You missed the word illegal in the post you responded to. Microsoft has a monopoly in the OS market. If there'd been an OSS GPL'ed browser available at that time, it too would have suffered the fate of Netscape because of the barrier to entry on the Windows desktop. Although it might have contributed to Netscape's failure, it wouldn't have been illegal for it to do so.
To put things in other perspective. How much money is MS loosing to GCC or media players like Winamp?
If I had to guess, I'd say nothing. At least nothing significant to Microsoft's bottom line. Since they bundle Media Player, few people will go get Winamp. Since you really need MFC support to do Windows code, most developers are going to get a compiler that easily supports MFC. It's that darned "barrier to entry" again.
Go read the FOF
Your friend is referring either to the Full Faith and Credit Clause (Article IV, section 1): "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." or to the Privileges and Immunities Clause (Article IV, section 2): "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States."
I'm not sure that either apply here, though. Microsoft is not a citizen of any state, and we're not talking about any of its privileges or immunities anyway. Secondly, the nine dissenting states are not failing to recognize the settlements offered to the other states. Rather, they are demanding different remedies for their own citizens (if I'm understanding the whole thing correctly-- I haven't followed it that closely).
Perhaps Microsoft is claiming that by insisting on harsher rememdies, the dissenting states are putting an undue burden on interstate commerce, which is the sole domain of Congress (see Article I, section 8, clause 3). Just a thought...
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dissertus scribendo latine videri volo.