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Microsoft, Feds Revise Settlement Agreement
An Anonymous Coward writes: "This AP article writes of some changes negotiated by MS and the Justice Department to the anti-trust settlement. MS urges Judge Kollar-Kotelly to accept the settlement it negotiated with the Justice Department b/c doing otherwise would raise constitutional issues. Please."
Don't dance with the devil and expect to not get burned for it.
The Raven
The Raven
Microsoft is using these arguments as stall tactics to:
- Wear the DoJ down
- Waste our tax monies
- Tire the states
- Prevent the release of the windows source code
They can tie this up in court until end of the decade, by which time they will just say "Oh! Here's the code for Windows 95." because windows 2010 will be out after three interim versions which they used to secure their monopoly. The US legal system is supposed to have speedy trials, but I foresee this one stretching out quite a ways.
Wherever you go, there I am...
There is too much of a potential conflict of interest.
Besides, think of the innovation it would spur in the software industry! ;-)
299,792,458 m/s...not just a good idea, its the law!
Galileo: "The Earth revolves around the Sun!"
Score: -1 100% Flamebait
wrongo, bucko trollboy....
if its found that the copyrights have been used to stifle competition and create a monopoly, they can be revoked.
probably the only truly fitting punishment in this case anyway. MS loses copyright on all Windows source code for abusing their monopoly position.
... hi bingo
Because section III.B. of the original settlement calls for uniformity in such agreements, companies like Sony would get screwed because they would be forced to release rights on certain patents to Microsoft, thus undermining their claims to that intellectual property....
That said, doesn't this seem like simply rearranging desk chairs on the Titanic?
Democrats and leftists assume that the Bush Justice Dept. is just in the pocket of Big Business, but that's as simplistic as most of their theories. The major opponents of MS are also giant corporations.
There are three major reasons for the lack of interest.
The first is the Republican belief in market forces. The Democrats have a strong belief in "levers of power" -- that the government "runs" the economy. The Republicans think that most of that is an illusion, especially in high-growth, rapidly changing areas such as high tech. There's some truth in both views, but true or not, that's a reason for less interest from Republicans.
The second is that when this lawsuit started, the Internet was supposed to subsume most of the US economy within two or three presidential terms, by some accounts. This was a major "lever of power" over the future of the economy as a whole. Since then, the Internet bubble has burst, making Big News in the Internet industry much smaller news to everyone else.
The third is the terrorist attack of Sept. 11. The Justice Dept. has to be seen to make steady progress at making people safe. Most people are more afraid of death than of Windows -- some Slashdotters excepted. A department with limited resources and answering to elected politicians will tend to focus on political hot topics.
"Those who have never entered upon scientific pursuits know not a tithe of the poetry by which they are surrounded."
Someone want to explain to me exactly how there's a seperation of executive and judicial branches if the judicial branch is just supposed to bow to the executive branch by simply deferring to the judgement of the Justice Department? It would seem to me that questions over seperation of judicial and executive branches are only applicable if the judge follows this recommendation.
Am I missing something? We are talking about the US government in which there are 3 seperate branches of governement which act as checks and balances to one another, right? How does the one branch of government simply defering to the other provide any checks or balances?
I can't imagine the judge looking too fondly on this "suggestion". Am I way off base?
Key to financial independence: Spend less than you earn. Save and invest the difference. Do it for a long time.
Review of the settlement isn't a violation of the separation of powers. Its the opposite. Microsoft is asking the Judicial branch to sign off on an executive action without substantive review. Its the court's job to make sure that the DOJ isn't being a bunch of corporate fanboys. Similarly, the court should be taking a good hard look at Microsoft's lobbying activities to make sure they aren't interfering with Congressional checks on the DOJ's actions. This is the purpose of separation of powers--checks and balances.
Also Thursday, Microsoft defended its decision to disclose to the trial judge only its antitrust discussions with officials in the executive branch, but not with those in Congress. Records of such contacts are required under the 1974 Tunney Act, passed to guarantee that a company settling antitrust charges doesn't improperly lobby the government.
Translation:
Hey! The key political figures that we can influence in our favor are none of your business! We're above the law, remember!
So, unless somebody violates their NDA, you won't see the Windows source. If they do, they're breached contract, and they're liable for damages, as is anyone who recieves the code from them. That's assuming they could have reasonably know nthe code was proprietary, I think. But given that every file will have comments reading "property of Microsoft" prominently marked on it, that's probably pretty easy to prove.
Microsoft's patents are a little better target, though I'm not very familiar with their portfolio. Any patents they've used anticompetitively (if any) ought to be revoked. I believe the government has done this before in other antitrust cases (possibly IBM?). That would at least remove one barrier to interoperability with Windows.
But would either of these actually effect Microsoft's monopoly position in the OS, office suite, and browser markets? Probably not. The biggest problem is that Microsoft has been so effective in eliminating competition, that very little credible competition is still around.
No, Microsoft needs to be dismantled, the pieces heavily shackled, and sunk to the bottom of Puget Sound.
-Mark
A corporation *IS* a legal person.
/.ers that have a job own a piece of M$ through their 401(k) or other retirement plan.
As well - corporations are *owned* by people. I wouldn't be surprised if the majority of
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I object to Intellect without Discipline.
Sporkin refused to authorize a consent decree settlement agreed upon by DOJ and Microsoft because he thought it wasn't strong enough as a remedy. The Appeals Court which is full of nice reasonable people like David Sentelle who for example, had overturned Oliver North's conviction and had also appointed Ken Starr as special prosecutor since the previous special prosecutor wasn't sufficently rabid, threw Sporkin off the case saying he didn't have the authority to withhold his signature to a settlement reached by plaintiff and defendant (one wonders why we have judges at all then).
However, the big difference between these two cases and what was used to hang Sporkin, was that an argument could be made from things he had said that he believed not just that the remedy to be ineffectually weak, but that he wanted the remedy to include corrections for Microsoft abuses that DOJ never argued or tried to prove in the case. The Microsoft/DOJ as appellants argued that this was an inappropriate blurring of function: Judge Sporkin couldn't be both Judge and Prosecutor. Blowing this minute and dubious distinction about remedy and sufficient remedy up into a separation of powers type argument, the appeals court went on to "reluctantly" accept Microsoft's contention that since Sporkin had mentioned having read a book , Harddrive, about Microsoft he was unduly biased against them and that bias was the motive behind his finding against them and his intent to apply a remedy stricter and more far reaching than DOJ wanted.
The consent decree was handed then to Thomas Penfield Jackson for his immediate signature, (who must have also wondered why a rubber stamp at DOJ wasn't used instead, since according the Appeals Court his signature was non-optional.)
Later on, when they could get around to voiding the entire content of Sporkin's finding against Microsoft, the COA did so. This is what shocked Judge Jackson into carefully separating his findings of fact from his findings of law, as he said himself, when predictably Microsoft was brought back into the courts again on a antitrust beef. For reasons of tradition, and because appeals courts are not supposed to try cases but sort out the application of law to verdicts and findings, Appeals Courts tend to leave findings of fact alone, and address only legal conclusions of lower courts. As it happened they did exactly as Jackson predicted, unfortuately his comments to a writer may have helped justify the obstruction from above, at least to the public.
As others have said before, if Judge K. is persuaded by the dissenting nine states and the Tunney comments and she tries to apply realistic remedies to Microsoft she will find her tits caught in the same big wringer.
This wayward reference to "separation of powers" is Microsoft and the Asscleft DOJ reminding Judge K. about what has happened to her predecessors on this case, particularly Sporkin. It would be really great if she had the balls to charge right back into the lion's den and force the Appeals Court to brazenly and shamelessly save Microsoft from their guilt once again! Are we not entertained?
Johnny Quest has two Daddies.
Microsoft defended its decision to disclose to the trial judge only its antitrust discussions with officials in the executive branch, but not with those in Congress. Records of such contacts are required under the 1974 Tunney Act, passed to guarantee that a company settling antitrust charges doesn't improperly lobby the government. Critics of Microsoft's disclosures -- including former Sen. John Tunney, D-Calif., who wrote the law -- accused the company of failing to disclose all its conversations with U.S. government officials.
Microsoft called those "meritless complaints," and said Tunney's opinion, "coming over 25 years after enactment of the statute, is irrelevant as a legal matter."
I am just astonished at the arrogance of the Microsoft legal team. I hope it bites them on the ass the way it did with Judge Jackson. Sure, Judge Kollar-Kotelly doesn't technically have to consider Tunney's opinion, but I think it will pretty well rule out any argument about the intent of the statute as it is written, so it's not exactly irrelevant.
Microsoft tried (apparently successfully, so far) to win the case through lobbying rather than in the courts, which is exactly what the Tunney act was designed to prevent. The New York Times said as much in the statement they sent to the DOJ in the Tunney Act public comment period. It's a long way from being a "meritless complaint."
I am so disgusted with the political interference in this case. The settlement would be considered weak even if Microsoft hadn't already been convicted of wrongdoing.
The fact that the Justice Department backed down to this slap-on-the-wrist after winning the case and convicting Microsoft of illegal activities smacks heavily of back-room deals and under-the-table politics. Microsoft obviously has the resources to engineer a political victory. Why didn't they disclose their meetings with members of Congress? A cursory reading of the Tunney act makes it clear as day that they should have done so.
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WTF? Where is the executive even involved here?
I can see a states-rights/federal question, but where is there a separation of powers issue between the judiciary and executive??
Besides, it's not a matter of the hold-out states not having the power to regulate interstate commerce. They have a valid complaint against a company that is in another state and the issue is being resolved, as it should be, in federal court.
The states don't have the power to affect interstate commerce. The federal judge, however, definitely does.
This MS motion will be struck down. Quickly, I believe.
That's irrelevant.
States don't have the right to regulate interstate commerce, but they most definitely do have the right to regulate intrastate commerce. Each state can assert its own requirements on software sold within its jurisdiction. This is common practice in other fields (e.g., insurance), and while it's not common in consumer products it's not unheard of. Odds are that the gas grill you buy is in LA is not the same as the ones you'll find in other parts of the country.
It's fully within the power of these states to pass their own legislation that applies to all software sold within their borders, e.g., all software must fully document all APIs and file formats or the consumer is entitled to the greater of $10k or 3x purchase price statutory damages for each purchase. Each vendor will have to decide whether they want to pull out of that market or comply with the new law. Many companies would pull out of a single state, but NINE states (including several large ones) is another matter.
Bottom line: the issue isn't whether these states are going to get their own settlement, the only issue is if Microsoft will agree to it in these settlement talks or if the software market will be Balkanized because the states feel that the DOJ and federal courts are nothing but Bill's love bitch and they have no alternative to local laws.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
This does *not* mean that monopolies should be left on their own. I want them stopped *not* because the government can run things better, or any illusion that the government can "fine-tune" the economy (all the evidence says it can't), but because monopolies tamper with my precious markets.
The very *problem* with monopolies is that they interefere with markets, and stop us from receiving the benefits of the market.
hawk, baffled by the supposedly free-market folks that are willing to let the markets be abused like this.
There is a major point of difference that you missed here:
Sporkin was to ratify a Consent Decree; a pre-verdict compromise (i.e. a plea bargain). This time, MS has already been CONVICTED. The judge has a lot more leeway in assigning a remedy with the force of law behind her.
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Let us live so that when we come to die, even the undertaker will be sorry -- Mark Twain