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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
The states "seek to establish themselves as national antitrust policymakers" in a case where they haven't shown any "state-specific injury," the company argued in part.
How can it possibly be that the states have shown no specific cases in their area? I'm sure there are many constituents in this state, or companies, that can demonstrate being harmed by some area of Microsoft actions. The states didn't just all jump on the bandwagon against Microsoft without having any cases themselves, they simply pooled their cases together. And now that the overall case seems to not be happening, they're seeking once again to address their grievances individually by state, b/c they're not happy with the settlement.
I don't see how that's unconstitutional - since the main trial already agreed that MS had a monopoly in the OS market, the states aren't seeking to make federal decisions, only to use them to help their case.
The article is a little sparse, but I don't see this being a solid argument at this point.
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In the interest of conservation of space, will anyone who simply wishes to make the obvious sarcastic joke about "windows as a stable and consistent development platform" quote please do so as a reply to this comment you are now reading, so the rest of us can just scroll quickly past and ignore the lot of these comments in one block?
Thank you.
It was also reported that a federal judge overseeing the Microsoft antitrust case has dismissed a suit brought by a nonprofit antitrust group claiming that the parties didn't fully disclose communication related to the proposed settlement. See this link
And this...... Microsoft has filed a new motion in U.S. District Court to block media access to four depositions that have already been taken in its antitrust case, as well as one that has not yet occurred. See this link
And finally, a great place to get all the goods on the case... visit here!!! Good luck!
As an officer of the court aren't the lawyers supposed to try to tell the truth?
Fight Spammers!
The states' call for an open-source version of Internet Explorer would destroy "any incentive for Microsoft to invest in the creation of such new versions," Microsoft said.
But they don't sell Internet Explorer. It's not a product. They don't make any money from it. Is Microsoft hereby admitting that IE is source code controlled as a way of manipulating Web standards in order to control the Internet? That they develop the product for free in order to drive competitors underwater?
Very interesting quote.
"The problem with the French is that they don't have a word for 'entrepeneur'." -George W. Bush
Microsoft today re-released it's revised version of the second draft of it's DOJ AgreementXP 7.0.9b package.
Under this agreement the states agree to re ammend an future litigation to include future contestment to future settlements of future points of litigation involving but not precluding any agreement in the first place.
In the event of any preclusion of an agreement to be acceptable to both or any parties invlolved are hereby resolved to the point of future litigation pending a court order with at least a 365 day warning pending aprroval of a senate oversight committee.
If these agreements are not met then proceed to Go and do NOT collect $200/month.
I have proof! Just click this link for some hard evidence!
"First lesson," Jon said. "Stick them with the pointy end."
Microsoft and the government have released a new, revised settlement agreement, according to this article at the Washington Post. Changes include removing a provision that apparently would have let Microsoft use hardware patents without compensating the owners (?!), more requirements for API disclosure by MS, and a broadening of the language of the document to make it harder for MS to weasel out of things.
Anyway, thought it might be an interesting read to go along with this story.
This tagline is umop apisdn.
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
Since Microsoft's actions do, indeed, affect consumers in every single one of the 50 states, I'd say the non-settling states have a very valid case. One could argue that any potential remedies would have to be limited to the states in question, but we all know that isn't very feasible. ("You mean I have to go to another state to get a computer without Windows preinstalled?!")
And don't forget, the judge hasn't approved the Justice Department's settlement yet. She can still overrule it as being insufficient to remedy Microsoft's conduct, and I hope she does exactly that.
If only Judge Jackson had been a bit more polite with his ruling, we might have a couple Baby Bills instead of having to go through all this...
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."
To which the response should be:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
This should take all of five minutes to resolve.
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?
Since it's an interstate business, it can't be forced to treat those nine states differently.
I never thought that Business Law class would become useful...
Each state is given the right to dictate commerce in their state from The Constitution. As interstate business took off, people saw the need for a uniformed method of trade, thus some of the lawmakers and lawyers met to propose the Uniform Commercial Code. This was a set of laws that controlled how to conduct business and defined a uniform set of rules regarding trade. Each state had to review the laws and then pass a copy of the UCC.
Today, they still need to lobby each state and ask the state to pass the law. The only reason the laws are uniform is because each state agrees to use the basic premise of these codes. The constitution still allows them to pass any commercial codes they want. If the nine states want to treat Microsoft differently, then they can. This is the same reason that the UCITA is only approved in two states. Everyone is allowed to make their own decision.
What Microsoft is really asking for is that the courts stomp over another little piece of The Constitution and ban the states from using their legal right to control commerce in their states.
The courts have spoken, but only to the effect that Microsoft is a convicted monopolist. The DoJ and 9 states have proposed a settlement with Microsoft that would take the case out of the hands of the federal court by settling it. These other 9 states have refused to be part of that settlement and want the case to proceed.
The Mongrel Dogs Who Teach
As much as I hate to admit it, Microsoft is right about this one. I was talking to a friend who is a lawyer, and he said this could technically fall under the clause that states cannot make rules that apply to other states. It's similar to the laws that say if I'm married in one state, I'm married in another. They have to recognize that. Well, it's unconstitutional for Maryland to make laws that would affect Georgia.
This is just what I was told, so I'm going by that. I'm not an expert on the Constitution so I don't know.
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 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.
If you recall, the only reason that there is the idea of "intellectual property" is because the government created this legal fiction for purposes of public good. Very similar to the existence of a corporation, actually.
You see, the government grants the special status of a corporation, and the special status of copyright. Given that those are both (useful) legal fictions, it is not unreasonable that the government can take them away or control them when these government created and granted legal fictions get abused.
Noone would stomach the government telling someone that they're not allowed to distribute the source code to their own program. What a person does is up to them (subject to constrains of law at least theoretically designed to keep people from infringing on each others' rights). A person as such has (inalienable) rights, including those of property and freedom of speech. However, a corporation doesn't even exist until the government creates it, and copyright does not exist on its own without the government creating it. Seeing as how both are their creations, is it not unreasonable that the government can direct the uses of its creation to prevent their abuses?
They laughed at Einstein. They laughed at the Wright Brothers. But they also laughed at Bozo the Clown. -- C. Sagan
If California gets its way, you might be required to.
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits
The question you have to ask you're self is where is a company making there money , that is there product ,not neccesarily what they give away for free. A company can spend alot of time developing something ,(say a an audio codex), and then give away that codex then sell hardware/special software to stream it /some other thing to take advantadge of it in some way.The point is that 90 percent of the work may go into the codex which is given away freely and only ten percent into the thing which makes the money.
.
,'company's products',are the things which make it capital or profit, all other things which the company gives away merly assist this process and in my opinion ie is more of a tool than a product, and it was produced with this aim in mind .
However according to www.dictionary.com i.e is a product.
"\Prod"uct\, n. [L. productus, p. pr. of producere. See Produce.] 1. Anything that is produced, whether as the result of generation, growth, labor, or thought, or by the operation of involuntary causes; as, the products of the season, or of the farm; the products of manufactures; the products of the brain."
It is the purpose of Ie that is called in to question by microsofts comment,"The states' call for an open-source version of Internet Explorer would destroy "any incentive for Microsoft to invest in the creation of such new versions,"",It is a product not intended to make money but to hold other browsers at bay, it is a tool of control for microsoft, if it were open source it would lose value as a tool of control
In my mind a
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I guess what Microsoft is really saying is that they don't want to have to make 50 different versions of Windows for sale in each state, and it is unconstitutional to require them too. However, there is a great counter example to this, which is auto manufacturers. They have to make modifications for certain states (CA), but it is legal to move a car from one state to another (used cars or when you move, etc). So maybe Microsoft will be forced to create certain versions for certain states. Of coruse they will complain how this will dirve them into bankrupcy or something. But if a car maker can modify an assembly line with all sorts of parts and expenses to deal with, then Microsoft can cetainly change software, which should be easier than changing around a factory.
Quite frankly at this point, who cares?
You yankees love to linger court crap. Look at OJ and now Yeates [sp?]
I know that our court system is convoluted, but it makes more sense if you understand the reasons for it. Our system is based on the fact that 1)Everyone has the right to representation, and 2)Even criminals have protection under the law, hence laws concerning "double jeopardy" and self incrimination.
Unfortunately, it has evolved into the bloated system you see that basicly comes down to who has the better lawyer.
Every now and then, I find myself agreeing with Shakespear, where the first thing you do is kill all the lawyers. I have to remind myself how dangerous that is. With no one as an advocate for the accused, its a very short step to "guilty until proven innocent"
Good or bad, its that way for a reason. I haven't seen anything better come along.
Just a thought
"...At the end of the day"..."when everyone goes home, you're stuck with yourself." RIP Layne Staley
Experts are once again issuing a warning the newly released MS SettlemeNT contains a security flaw which could allow malicious coders to take over your Intellectual Property, delete files on your computer and gain control of your finances. MS denies these allegations though insiders say Microsoft is working on a patch. Back to you Neil.
I read somewhere about this that MS might have a case, but it's a slim chance.
The essence of what the legal expert was saying was that the case was filed jointly by the states and the feds, or some such thing--not just by the feds--and so it's within reasonable limits for the states to ask for settlements separately from the feds. Basically, it had something to do with the way the case was filed to begin with.
In any event, as the legal expert went on, because of the way the case was filed, MS should have protested initially, during the beginning of the trial. The fact that they have waited so long damages their argument--if this is a constitutional problem, they should have addressed it when the case was first brought against them, and argued that the states shouldn't have separate authority as a plaintiff to begin with.
That's my understanding of this issue at this point.
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...
I would be willing to bet that the MS legal team doesn't believe that this motion has a snowball's chance in Bills own bedroom of going anywhere. This is a tactic to generate support among the large PC manufacturers who would have to support 2-3 different version of the same operating system. What they are saying is that it is illegal for one state to set the laws of another state, so if the disenting states win their case, then they will cause MS to make one version of Windows for those states, and one version for the rest of the country. You can imagine the logistical nightmare this would cause at HP, Dell, and Gateway.
MS has admited that they recognized a problem when the rest of the industry didn't step up and defend them in this case. This is their unique way of squeezing that support out of them while still staying firmly in the dominant possition.
Brilliant move if you ask me, good chance it will backfire though, and cause the pc makers to get more vocal about what they would like to see the final settlement look like.
There's plenty of room at the bottom.
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.
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?
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