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."

Comments

constitutional issues?

[Anonymous Coward]

Did M$ take the 5th on their source code?

Re:constitutional issues?

[nahtanoj]

No, but the programmers did plead temporary insanity.

nahtanoj

Re:constitutional issues?

[letxa2000]

What I don't understand is how MS has a constitutional issue between the separation of powers of the executive and judicial branch.

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.

Re:constitutional issues?

[coyote-san]

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.

Still a complete sell-out by the government

[vlad_petric]

... It still doesn't require M$ to disclose office file formats or open-up protocols

The Raven

Stalling Tactics

[InfoSec]

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.

Re:Stalling Tactics

[jc42]

In any case, a basic principle of antitrust cases is that you don't have to win; you only have to delay a judgement. As long as the company can keep the case in the courts, it can continue its illegal practices. The court costs for Microsoft are much smaller than the profits they are making, so delaying the case is merely a marginal cost of doing business.

Microsoft software...

[Glock27]

should immediately be banned for use by US government entities.

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!

Ohter news regarding this....

[lemonhed]

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 this.... A great place to get all the goods on the case... visit here!!!

And finally.... A great place to get the latest press releases Click Here!!!

A Little Fun...

[webword]

Don't you wish that you had the resources to play games with the courts when you got parking and speeding tickets?

Re:A Little Fun...

[Milican]

Well Billy Bob the policeman should be doing something else besides whoring out the county and giving out speeding tickets to raise revenue. Police should be trying to prevent real crimes like murder, stealing, etc..

I have received several tickets, but not once have I received help from Police when I needed it. I have been at functions where friends were shot at and on another occasion had my car stolen. I reported the license plate to the cop of the offending car, but did they catch them? Hell no. I asked the cop to finger print my car when we recovered it, but "he didn't have his kit". So much for fighting crime eh?

I'll fight every damn ticket I get if for no other reason but to give cops incentive to do their real work instead of milking another revenue stream.

Sorry if I offended any policemen out there. I'm sure there are some of you doing a good job.

JOhn

Re:Huh?

[FooKuff]

Huh?

Go to OpenSecrets Search, put "microsoft" into the individual donor search field and click the "Go!" button. I think the answer as to why the Republicrats are behaving this way will become immediately apparent.

A Great Deal of Misunderstanding and Wild charges

[gehrehmee]

Sony Corp., for example, had complained to the government that the provision "would diminish Sony's ability to assert its patents ... and thereby may enable Microsoft to expand its power into new areas."

Microsoft described those complaints as "a great deal of misunderstanding and wild charges that Microsoft would use the right to misappropriate the intellectual property of others."

"Well, sure the settlement would give us the right to misappropriate the intellectual property of others. But we're genuinely insulted that anyone would suggest we would use that right..."

Times have changed since the case.

[ImaLamer]

As I see things now [typing this in XP], the case is now backwards.

Before it was using Windows to get users to switch to Internet Explorer. Now the case has turned 180 degrees.

When I use any Microsoft app, from Money to Encarta... I can't help to notice all rely on IE. The problem is, you can't use IE very well without Windows.

Congratulations XP owners... you paid ~$200 for Internet Explorer and .net applications.

Windows is the "bundleware".

Same tactics, different point of attack.

[Gopher971]

This agreement, and I use the word loosely is simply another attempt to force the U.S. District Judge Colleen Kollar-Kotelly to agree to the MS / DOJ terms. The indication that to not do so would be unconstitutional due to seperation of powers between the executive and legislative branches is worrying. The Justice Department also states that the Judge "should not lightly reject the government's predictions" is a not too subtle hint that it is running out of patience with Judge Kollar-Kotelly.

I think this is simply going to come down to whose set of lawyers can outlast the other.

But then, isn't this nearly always the case?

Re:Same tactics, different point of attack.

[TandyMasterControl]

They are trying to threaten her with the same reaming the Court of Appeals laid down on Stanley Sporkin back in 96 (?)
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?

Re:Same tactics, different point of attack.

[TandyMasterControl]

Practically the only reason to not enter a settlement is that the nominally hostile parties are really ganging up on somebody that isn't represented.... Like
it or not, the court has to accept that the DoJ represents the people of the Un
ited States.

Simply put (thanks) and simply false.

"A decree, even entered as a pretrial settlement, is a judicial act, and therefore the district judge is not obliged to accept one that, on its face and even after government explanation, appears to make a mockery of judicial power."

--DC Court of Appeals , US v Microsoft, 56 F.3d 1148 (The Reamage of Stanley Sporkin)

Apparently even the DC Circuit Court of Appeals disagrees with you, Artagel.

The originating premise of the Tunney Act (an amendment to the Clayton Antitrust Act), which is not an Executive order, nor an act of judicial fiat, but a law passed by Congress, is that sometimes, in antitrust matters, the Executive may fail to act in the public interest. Why solicit 60 days of comment from the public at large if the Justice Department is assumed to be the insuperable voice of the People? The whole thrust of Tunney's minimal requirements is to pour sunshine in on the decision making process used by DOJ when it decides to shortcircuit the working of antitrust litigation with a preremptory settlement with the defendant. Clearly it is time to remind ourselves why the Tunney Act exists in the first place.

In 1972 the Nixon DOJ announced a settlement with IT&T, a settlement which subsequently was discovered to have been the result of lobbying efforts by IT&T directly on the Nixon White House which in turn, influenced the preexisting antitrust prosecution of IT&T by the Justice Dept. Under the terms of law operating at the time, terms to which you seem to want us to revert to, the presiding Judge would have had no discretion to withhold his signature from the consent decree, even if he was aware that the whole agreement stemmed from a bribe to someone at Justice or the White House. You complain of a 2 player game, but when the DOJ and the defendant are colluding and the Judge can't do anything about it, it becomes a ONE player game. That is the injustice Tunney was designed to end. The Tunney amendment was therefore proposed, adopted and signed into law to prevent the presiding Judge in antitrust cases from being used as a rubber stamp by a corrupt or negligent executive. What are the requirements of Tunney?

Tunney requires DOJ to solicit comment from any person at all with an argument to make about the public interest impact of the proposed settlement. These comments must be made part of the public record; the district Judge can ask DOJ to answer issues raised by these comments.
(What has happened today is that the DOJ and MS have filed an amended settlement proposal in response to the Tunney comments, as directed by Judge K. - so you see, Tunney comments are not and never have been just a "chance for those outside somebodies to howl")

Tunney requires that the DOj include a thorough defense in the Competitive Impact Statement of the features of their proposed settlement- why these specifically were chosen as opposed to other possible remedies.

Tunney requires full disclosure of all contacts between the defendant and its agents and officials of the Federal government. So in the case of IT&T the contact between the defendant and the Nixon White House would have been known to the Judge and the public before the settlement was entered instead of coming to light
later. Likewise, full disclosure in Microsoft's case would mean a detailed account of the contacts made by their lobbyists like Vin Weber (former representative) Haley Barbour (who I assume needs no introduction) and Boyden Gray (former Whitehouse counsel to George H. W. Bush), including who they talked to and what they said. Also, Microsoft would have to declare the meeting between Dick Cheney and Steve Ballmer and provide details on what was said.

Tunney also requires that DOJ make available to anyone all "determinative documents" --that is internal memos, findings, notes passed in class, etc-- that bear on its decision to settle and on any of the particular features of the proposal. (Sporkin wanted details about the government's discussions with MS, too,
under these "determinative document" terms, to discover how they decided to concede key points to Microsoft. This was found to be insufferable overreaching by the COA but, in hindsight there could be no better determinative document for discovering how DOJ came to agree with MS that WindowsNT fell outside the relevant market, a concession even the DC COA found questionable.)

Now these are the minimal requirements of the Tunney Act and as you can see all of them intend to scrutinize the DOJ and to make DOJ accountable whenever they decide to settle antitrust cases. The Judge is empowered by Tunney to withhold signature from any proposed settlement between DOJ and the defendant when these minimal requirements have not been met in a good faith manner in his or her opinion, or are refused or ignored by the DOJ and defendant.

Furthermore, Tunney empowers the district court judge to withhold signature for even broader reasons, when the proposed settlement appears to him to be beyond the pale of the public interest (like say, the consent decree was a toothless sham or so ambiguous as to be unenforceable). In general the "public interest" considerations favor meeting the stated goals of antitrust law like the Sherman Antitrust Act's provision that any ill-gotten gains be stripped from the offender, that the remedy be adequate to deter and make impractical future violations by the defendant, or that past damage by the defendant be undone by the remedy. These are all provisions mentioned in the ratifying debate in the Senate with clear examples given, and are understood clearly to be grounds on which a district court may refuse -with Tunney's "public interest" language as its justification- to enter a consent decree between DOJ and a putative monopolist. This power is essentially a complex "sniff test" administered by the Judge: if the proposed settlement probably makes the situation better, it passes and he signs off; if it does nothing or probably makes things worse, or he suspects the DOJ hasn't leveled with him, it may fail the Judge's sniff test. It doesn't give the Judge the power to hold out for the best possible solution imaginable; but it does afford him the power to refrain if the net result appears most likely to produce a worse situation than before or an unchanged problem. The existence of the discretionary power of the district Judge to look out for the public interest when presented with a DOJ / defendant settlement proposalwas also understood by DC COurt of Appeals even as they overturned Sporkin, and referred to the "rather broad" sweep of discretionary powers granted to the Judge by the Tunney Act.

In the opinion of the DC Court of Appeals:

"When the government and a putative defendant present a proposed consent decree
to a district court for review under the Tunney
Act, the court can and should inquire, in the manner we have described, into the
purpose, meaning, and efficacy of the decree. If
the decree is ambiguous, or the district judge can foresee difficulties in implementation, we would expect the court to insist that these matters be attended to. And, certainly, if third parties contend that they would be positively injured by the decree, a district judge might well hesitate before assuming that the decree is appropriate. ....A decree, even entered as a pretrial settlement, is a judicial act, and therefore the district judge is not obliged to accept one that, on its face and even after government explanation, appears to make a mockery of judicial power."

Now those are the broad parameters of the Tunney Act, but of course in practice everything can be different. In practice, the DC Circuit Court of Appeals has never met an excuse for not following and for disrespecting Tunney Act that they didn't like. They admit it is Law, but they seemingly refuse to find anywhere to apply it.

Where the COA reamed Sporkin specifically was, as I've said, where he veered too close to demanding an legal action that exceeded the claims made and substantiated by DOJ. And they reamed him over the fact that there had been no trial with findings for him to hang onto as his justication. Appeals courts have traditionally insisted on a much greater degree of deference from the Judge to the judgement of the Justice Dept. when there is a proposed settlement without a trial, than when a trial preceded the proposal. The fact that there hadn't been a trial yet was not Sporkin's fault of course but it limited his power to review the proposal more than he guessed. Despite pertinent and valid objections raised to the settlement by the anonymous Amici lawyers, the Court of Appeals would shoot most of them down by simply saying in effect Sporkin should have deferred to DOJ on this. It is hard to argue against them where they simply blow off Sporkin with circular arguments to the effect that he have deferred. However, no one should ever forget how badly the Court of Appeals misjudged matters in the critical question of the ambiguity of the proposed settlement. The one objection they did find potentially valid was the contention by Amici that the proposal was unacceptably ambiguous because there was no understanding between DOJ and MS about the binding power of their agreement over successor operating systems, like WindowsNT. The COA could not deny that this Tunney objection was for real, but they decided that the appellant's answer was trustworthy: WindowsNT would never be positioned as a successor system in the relevant market of desktop operating systems, dominated by the DOS family at the time. Amici had alleged that such was indeed likely and so the ambiguity was disqualifying. DC COA allowed that it would be disqualifying but said it would not be a problem: Microsoft and DOJ vouched that NT would always be a specialist's os with neglible marketshare. Of course, the ink wasn't dry on their decision before we all knew what bullshit that was. Microsoft maybe wasn't telling the government that the NT kernel was the successor to Windows3.1 and Chicago but they weren't shy about telling developers. That tells the truer story about Who was Really Biased and in the direction of Whom. COA was like the Simpson jury looking for any and every excuse to let a sympathetic defendant go: they chose to believe the defendant's lies even when they were ludicrous. Microsoft's rapid turnabout and defiance on this point gives a lot of credibility to Sporkin' objection that the proposal didn't begin to address the need for assured compliance mechanisms and provisions for compliance supervisors. But of course he should have deferred to the wisdom of DOJ.

Was Sporkin at fault for insisting that DOJ treat the possibility of preventing Microsoft's use of preannouncements in maintaining their monopoly ? Sure, he asked for it. He opened himself to attack and was reversed. He had valid minimum requirement objections but this point and his lack of deference could be used to portray a "Judge out of Control" But his reversal in no way ties the hands of a subsequent Judge like Jackson or Judge K. : there has been a trial, there are now Findings of Fact, most of which have been upheld unanimously by the COA itself. For this reason the district Judge is not commanded by precedent to defer to DOJ on any and every point of minimal Tunney Act compliance. According to that law the Judge now has substantial discretion to ensure that any settlement actually achieves pro-competitive goals as set forth in the older canonical Antitrust Acts. And if Judge K. decides that half of the States and the preponderance of the Tunney comments have given her substantial reason to believe that the proposed settlement is still unenforceable and, all things considered, not in the public interest then the DOJ and appellate will have to play along, or play her out. In theory, as long as she sticks strictly to remedying abuses enumerated in the FOF and relates those to broad Antitrust objectives, she could make DOJ and MS come back again and again until they finally coughed up a real set of remedies. But in practice it's not going to be that simple, and probably won't happen --can't happen even if she was really inclined to get a credible remedy. If she doesn't capitulate soon, she'll have real hell to pay. The Tunney Act was intended to get politics out of antitrust enforcement, but the DC COA have managed to put it back in by reaming Sporkin the way they did. They have created an atmosphere and expectation of mindless kowtowing from Judges towards the DOJ no matter how corrupt or negligent the department may be. If Judge K. doesn't find the settlement in the public interest and sticks to her guns, the rabid fringe will be all over cable TV screaming about bias and how she's a runaway Judge out of control yadda yadda and so on, with the net effect that all Microsoft and DOJ have to do to break her down is to keep submitting the same bad settlement proposals with newly positioned commas.

It would be so much more honest of them, and maybe you too, if they simply let the world know that deep down THEY DON'T LIKE the Tunney Act --never have-- and went on to declare open war on its Constitutionality. Let's hope they have the honesty to admit they hate it and also the honesty to admit what kind of abuses antitrust enforcement will experience again if they succeed in abolishing it. That probably wouldn't be their way, however. Some courts act mostly in the nuances, some prefer to act in the shadows.

Microsoft's Bill of Rights

[dubdays]

(I) Freedom of monopolies.
(II) Right to bear arms against the competition.
(III) Right for a BSA henchman to occupy your home or place of business.
(IV) Right to search everyone's computer without their consent.
(V) The right for Microsoft to lie in defense.
(VI) The right to draw out a trial for years to extract every last dime from taxpayers.
(VII) Right to trial by judges who are technologically illiterate.
(VIII) Right to inflict cruel and unusual punishment against anyone using a non-Microsoft OS.
(IX) Microsoft has numerous inalienable rights not granted to anyone else.
(X) Any rights not explicitly granted to Microsoft are exclusively reserved by Microsoft for future litigation.

Re:Microsoft's Bill of Rights

[Anonymous Coward]

That should be Microsoft's Rights of Bill.

Face Saving Measures

[alexander.morgan]

The changes to the settlement agreement are just a way for the Justice Department to save face. The government surrendered. Considering MS spending during the last election, it is obvious that an enormous amount of lobbying went on behind the scenes. Current law does not consider that bribery. But is it surprising that MS does not want to advertise that fact in open court? Or that the Justice Department does not want to comment on MS maneuvering behind the scenes? The spin makers are simply trying to make the Government's surrender look a little less obvious.

In the meantime it is obvious that Microsoft has no intention of playing fair, or by the rules. Locking competing browsers out of MSN is only one example. Microsoft is working to become a toll booth for all Internet access. If they are successful, then Bill Gates will either be the first Trillionaire--or maybe we'll finally have a revolution ;-)

Another example of Microsoft claiming victory is a friend who upgraded MS Explorer, because she heard about all the security holes. The upgrade also conveniently removed her Eudora icon from the desktop and replaced it with all kinds of spamicons (although they didn't go as far as actually removing the program or her files).

More? Need I mention Passport? How about XP Forced Activation and "Managed Applications"? Sounds good, until you realize that it gives Microsoft complete control over who can play in their sandbox.

Through the Quest DSL deal, they are even trying to control the pipe.

The bottom line: Microsoft has declared victory, and they are behaving like it. You will be assimilated, ...

Justice Dept. just not interested

[GCP]

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.

Re:Justice Dept. just not interested

[talks_to_birds]

Same feeble right-wing thinking...

"..The first is the Republican belief in market forces..."

What f*cking "market forces"?

Micro$oft is a monopoly.

There is no market at work in computer operating systems, nor in any major application category.

"...Since then, the Internet bubble has burst..."

The "Internet bubble" was an economic house of cards, built by yuppie VC's and gullible "investors" in search of a quick buck.

The real Internet has nothing to do with that bubble, but understandably, neither you, nor the Republicans get that. After all, the business of America *is* business.

"...The Justice Dept. has to be seen to make steady progress at making people safe..."

Oh, right, the Justice department is doing a lot of *that* these days, along with destroying civil liberties and personal rights to privacy.

But *that* doesn't concern the Republicans: "If you're not guilty, you've got nothing to hide."

"...A department with limited resources and answering to elected politicians will tend to focus on political hot topics..."

Yup. Justice answers to Gee Dub Ya, and Gee Dub Ya and the Republicans are in bed with Micro$oft, so whatever Micro$oft wants, Micro$ost gets...

t_t_b

Re:Justice Dept. just not interested

[marcop]

A department with limited resources and answering to elected politicians will tend to focus on political hot topics.


You're forgetting about this incident: Fed Raids Software Pirates in 27 Cities.

Re:Justice Dept. just not interested

[alacqua]

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.

Republicans and the right assume that everyone who disagrees with them is simplistic, but that's as simplistic as most of their theories.

Sorry to offend the Republicans out there who don't make pompus statements like that, but I thought saying it this way was more effective. Not all Republicans are idiots, just as not all Democrats are idiots. As to your other points:

One does not have to believe that the government runs the economy to believe that monopolies can be dangerous.
The DOJ decided not to pursue a breakup nor to proceed on the tying count prior to September 11th.

Re:OT - Enron Execs

[SirSlud]

From www.michaelmoore.com (opens in new window .. his report has links to all sources):

> The only thing that surprises me more than all the Enron henchmen who ended up in your cabinet and administration is how our lazy media just rolled over and didn't report it. The list of Enron people on your payroll is impressive. Lawrence Lindsey, your chief economic advisor? A former advisor at Enron! Treasury Secretary Paul O'Neill? Former CEO of Alcoa, whose lobbying firm, Vinson and Elkins, was the #3 contributor to the your campaign! Who is Vinson and Elkins? The law firm representing Enron! Who is Alcoa? The top polluter in Texas. Thomas White, the Secretary of the Army? A former vice-chair of Enron Energy! Robert Zoellick, your Federal Trade Representative? A former advisor at Enron! Karl Rove, your main man at the White House? He owned a quarter-million dollars of Enron stock.

Then there's the Enron lawyer you have nominated to be a federal judge in Texas, the Enron lobbyist who is your chair of the Republican Party, the two Enron officials who now work for House Majority Leader Tom DeLay, and the wife of Texas Senator Phil Gramm who sits on Enron's board. And there's the aforementioned Mr. Pitt, the former Arthur Andersen attorney whose job it is now as SEC head to oversee the stock markets. George, it never stops! My fingers are getting tired typing all this up -- and there's lots more.

John Ashcroft

[hrieke]

It was noted that he took money from Enron and disqualified himself from the case. It is also noted that he took money from MS and has not disqualified himself from the case.
Hummm....

Poll (was Re:Stalling Tactics)

[Rupert]

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

You forgot:

- Cowboy Neal

Microsoft -- ruthless and lucky (and ruthless)

[blueskyred]

Microsoft pulled every single trick in the book and basically won the case. They got lucky with Judge Penfeld Jackson talking a bit too much to the press... but that wasn't enough. The main thing is that since we had a change at the White House, and therefore the DOJ, everything about this case has been a sham.

If Gore was given the election (he did win it, but he wasn't given the keys) would this case have been settled? If it were settled, would it have been so generous? (Even with the current changes, it is a sweetheart deal.)

Here is a small list, off the top of my head, of the things Microsoft has done or has used to get an advantage in this case:

• Delayed the case from coming to trial for almost two years
• Made the trial take much longer than needed
• Committed perjury -- remember that icon in the system tray that gave it all away?
• Claimed in court that Linux was a threat while simultaneously dismissing it in the press and in the industry
• Argued that if they didn't get the result they liked that they would appeal to the Supreme Court
• Judge Penfeld Jackson rules that Microsoft was guilty of illegally maintaining a monopoly -- this was on April 3, 2000. He then talks way too much to the press
• When indications were that they wouldn't win in the Supreme Court, Microsoft tried in the court of appeals AGAIN
• Court of appeals vacates Jackson's breakup judgment
• Gore win the election but the White House goes to Bush
• Bush talks-down the economy. Microsoft uses this as an excuse to end the trial as soon as possible, for the good of the economy.
• September 11th. Microsoft uses that grizzly act as an excuse to end the trial as soon as possible, for security (??) reasons as well as for the good of the country. "We don't need internal strife in a time of war" or something like that...
• Justice gives a sweetheart deal. 9 states go with it while 9 others do not, including California and Massachusetts.
• Microsoft makes some slight changes to the agreement in an attempt to make people happy. It barely works, but hey, they were working "in good faith."
• To quote an article from Salon.com, Microsoft also argued that the trial judge's role in approving the proposed settlement is "almost ministerial," and urged her to defer to the judgment of the Justice Department about whether the agreement "is the most appropriate mechanism to resolve the competing interests at stake." To do otherwise, the company argued, would risk constitutional questions over the separation of powers between the executive and judicial branches of government.

Seperation of powers

[mjh]

Microsoft also argued that the trial judge's role in approving the proposed settlement is "almost ministerial," and urged her to defer to the judgment of the Justice Department about whether the agreement "is the most appropriate mechanism to resolve the competing interests at stake." To do otherwise, the company argued, would risk constitutional questions over the separation of powers between the executive and judicial branches of government.

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?

Separation of Powers

[KnowsNot]

Microsoft also argued that the trial judge's role in approving the proposed settlement is "almost ministerial," and urged her to defer to the judgment of the Justice Department about whether the agreement "is the most appropriate mechanism to resolve the competing interests at stake." To do otherwise, the company argued, would risk constitutional questions over the separation of powers between the executive and judicial branches of government.

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.

Tunney Act and Comment Period

[Gopher971]

As I was not familiar with the Tunney Act, I did a bit of googling and found out some interesting information regarding the case law involved.

Apparently no Judge previous to the MS case has ever asked if any changes would be made to the agreement between the two parties after the public comment period had elapsed.

Now given that it is Judge Colleen Kollar-Kotelly's responsibility to determine a remedy that is in the People's interest, is more likely that the final settlement will be more inline with the Public Comment sentiment rather than the DoJ / MS agreement.

The Judge is entitled to view all of the public's submissions before coming to a decision.

Now isn't that interesting? :)

Tunney Act

[Bilbo]

I like this part -- in response to the Tunney Act, requiring corporations under anti-trust actions to disclose communications with 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."

Uh... so if a law is more than 25 years old, it is no longer relevant?

If I had balls as big as Microsoft's, I'd have to register as my own Solar system...

It could be done, but it wouldn't solve much

[mbessey]

Suppose MS loses their copyright on the Windows source code. Okay, now what? The code is in the public domain (theoretically), but anyone who has a copy of it is already under a non-disclosure agreement, and the enforceability of those contracts presumably doesn't hinge on the "copyrightedness" of the material, just on its importance to Microsoft's financial well being (see: "Trade Secret").

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

How long...?

[cr0sh]

We see and hear this crap every damn day here in America - Microsoft, Enron, AOL/TW, MPAA, RIAA, our own government, for cripes sake! - rolling over the people, to damn with the citizens, profits above all!

Nothing seems to stop the behemoths - we can't rely on our government: Not only do they pass the laws that give the corps power, and not only do the corps pay the people in government to pass those laws (let's quit pretending here - of course they do - this is not a fairy tale, and we know it!), but they also pass laws that hinder us, the people, from being able to do anything about those in government (ie, campaign finance reform, term limits, etc)!

Those few in government that support the people (and oh so few they are) can't possibly stay in place forever. Some might even be corrupted by being near and around such a tar pit - it takes a strong man or woman to resist such human baseness.

This is what I see:

I am two years shy of 30. I know things weren't all that different when I was born, versus today - but I do know that people had to care more. I remember when there was a complete uprising on the web over COPA - why don't we see that today with the DMCA, SSSCA, etc? It is there - a little - but at the same time it isn't.

I figure, if I am lucky, and barring any major affordable advance in medicine - that I have another 35-40 years left on this planet. The world I am seeing coming forth from decisions, manipulations, the greed, etc - from multinationals, corps, our government - the apathy of the people to do anything about it - while the world stands by, watching the implosion - some begging the people to do something! - while wars rage on, both physical and over ideas and ways of living (ie, "War on Terrorism", "War on Drugs")...

I see a furthering of the dystopia we now live in that makes the worlds of Bladerunner and Gibson seem peaceful and serene. Darker - closer to 1984 and Farenheit 451 mixed together. Perhaps even darker than that...

When will the people wake up...? Why can I see, you can see it, a lot of people can see it - but everyone else can't...?!

How I long to ignorant and in bliss like the masses. How I long to just do the things everyone else does! I would love to get a DVD player and lots of movies - but I can't justify supporting these idiots of the MPAA! I would love to buy CD's - but I dare not because of the RIAA!

What are we the people going to do - stand by and let this happen? If the corps can control the government a little now - can they control it a lot later? If the control the government, do they control the military?

The system of checks and balances seem to have succumbed to the power of the dollar! Nay, to greed itself! What is the point of Law in such a situation, then?

I don't want to find myself 30 years down the line with my kid asking me why I didn't do something. I write my letters to my congressmen, but it doesn't seem to do anything at all (indeed, I wrote them about Dmitri way back last summer - recently I got a reply about it! Such speed!).

WE MUST DO SOMETHING - TODAY.

If you can't fight them - buy them

[iPaul]

Is it just me, or does it seem like the crime of bribery is a question of amount and how you give it? After all, isn't the purpose of bribery to get something you want from a public official by giving them money? It's no wonder Microsoft doesn't want to disclose their congressional conversations. In addition, expect the executive conversations to be full of 'memory gaps.'

If you had $50 bucks to a cop to forget a speeding ticket it's bribery. Hand a politician $25,000 for their campaign (helping to secure their office) it's a 'contribution.' Hand a fire marshall $100 to ignore a firecode violation is a criminal offence. Change a congressman's mind with soft money and it's 'convincing.'

This whole thing stinks. The one time when you need the government to be the government and police a monopoly, they get bought. What will happen is that the desktop will become (and will be made to become) irrelevant. It's getting to services and content on the internet that will make a computer usefull. If Microsoft controls those keys (by controlling the desktop) then we've lost as consumers. They will only further consolidate their monopoly and they will destroy everyone and everything else. (Except a few large companies like Oracle and IBM).

Meritless complaints? I don't think so.

[Linux_ho]

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.

Re:The Constitution to Limit Government

[TandyMasterControl]

Except that the case was remanded to her for the specific purpose of coming up with and applying a remedy. What they are really doing is threatening her with Sporkinization. (Imagine a Spork where you least want it, twisting back and forth and plunging forward repeatedly)
Judge Sporkin was reamed because the DOJ and Microsoft made a claim that he was demanding remedies to abuses not proven in the DOJ's case against MS, that he wanted to be both judge and prosecutor, which overstepped his Constitutional bounds.
As long as Judge K. refrains from any remarks that could be used to insinuate that she is trying to remedy wrongs not proven by the case in Judge Jackson's court and upheld by the appeals court, then she should be safe to hold out for something better.

Then if they Sporkinize her anyway, and they may, it will become completely obvious to anyone that the Appeals Court and the Bush DOJ are conniving to get a powerful rich defendant off the hook in spite of the fact that Microsoft are as guilty as Michael Jackson in an orphanage or Olly North in the White House.

The free market argument

[hawk]

I also believe in market forces. In fact, like most economists, I *strongly* support free markets.

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.

Re:The free market argument

[Spoing]

Numbers 1,3, and 4 don't address the FSF's monopoly since the FSF still holds the copyright.

The GPL does not restrict use, so copyright only becomes an issue if the GPL is violated. 1, 3, and 4 don't violate the GPL, so those uses -- those actions -- still can be performed by anybody or any company. The FSF is powerless to prevent these changes -- and that's the whole point of the GPL. It's about user's rights, not developers/corporate rights. (Note: This is a restatement of the intent of the GPL, not my personal single minded thoughts on the subject. The GPL is one of many tools.)

Number 2 is illegal under the GPL.

Also wrong. I wrote "Add seperate but different propriatory, BSD-style, or GPLed code." With the operative words being "Add seperate". There's nothing in the GPL that prevents taking two seperate programs -- one GPLed the other not -- and placing them in the same package. Most Linux distributions have propriatory parts in one form or another.

The issues come up with extentions of the original GPLed code...so if those extentions are also GPLed, there's no problem. If there are no extentions, and all the new stuff is in other programs, the GPL is not violated regaurdless of the licence used for that new stuff.

In either case, there is a 'monopoly' in GCC only because nobody cares to change that. If they did, the GPL would allow them to do so almost immediately. With enough backing -- social or corporate -- the actual monopoly would not exist for long. Microsoft's monopoly isn't even similar.

Re:The free market argument

[istartedi]

In either case, there is a 'monopoly' in GCC only because nobody cares to change that

Have you asked anybody how they feel about gcc, or did you just pull that out of thin air? I have seen people complain about gcc on more than one occasion, for its poor optimization and poor maintainability.

If they did, the GPL would allow them to do so almost immediately. With enough backing -- social or corporate -- the actual monopoly would not exist for long.

The very nature of GPL'd software is that there is a weak incentive for people to do that. The "enough backing" isn't going to materialize. The monopoly *is* actual and it *has* existed for long.

Microsoft's monopoly isn't even similar.

Oh but they are very similar. MS bundles things into the operating system and forces OEMs to include Windows. You have to buy Windows whether you like it or not. IBM and other companies take money from customers and use part of it to support GPL'd software. Many of their customers probably don't like the GPL, but companies don't have checkboxes for "please don't use proceeds from my purchase to promote the Free Software movement". The Free Software movement uses a more complicated maze than MS, but it's the same rat and the same cheese.

Comment removed

[account_deleted]

Comment removed based on user account deletion

I have to disagree

[GCP]

There is no market at work in computer operating systems, nor in any major application category

If I express the opinion that the Republicans are motivated, in part, by their belief in market forces, the truth of the statement does not depend on whether market forces exist or not. It is sufficient that their belief exists.

Even so, my own opinion in this case is that there are clearly market forces at work in all monopoly cases, especially this one. It was widely believed that Netscape was going to break the monopoly in operating systems with an abstraction layer above the OS containing its own API: the browser.

Sometime thereafter, it was believed that Java would do likewise. Some felt it would be thin client computing, whether Java-based or more diverse. Some believe that devices will eventually proliferate and diversify enough to relegate Windows to a desktop niche. A lot of people here believe it will be Linux.

Whatever the case, eventually trucking and air cargo, plus electronic communication, made rail monopolies no longer transportation and communication monopolies. The same fate will eventually befall MS Windows. The question is how soon and are we willing to wait for it.

I'd prefer not to wait, by the way, but there are always market forces.

The real Internet has nothing to do with that bubble, but understandably, neither you, nor the Republicans get that

I make buckets of money in the "real Internet" industry, with no sign of a slowdown in demand for my particular services. Your claim that I don't understand that the real Internet exists, when it is paying my bills, is a foolish one. Does the same analytical process underlie all your beliefs?

...Micro$soft...

Nice touch.