DOJ Argues in Favor of MS Settlement

hpa writes: "It is described in this article on CNET the Department of Justice is arguing in favour of the proposed settlement, because the government's case was too weak to impose additional penalties on Microsoft. Somehow this seems like a very odd thing to me, effectively the prosecution is pleading on the part of the defendant..." There's also an AP story.

Comments

Re:Pardon my ignorance...

[NoMoreNicksLeft]

When AT&T had a telephone monopoly, people still had the options of...

1) Moving to another country where AT&T wasn't a monopoly.
2) Buying all the land in between their own, and those people they wanted to call, for the purpose of building their own comm system.
3) Writing letters.
4) Doing without. It's not like telephones are a necessity.

So, I guess the courts were wrong back then, they obviously weren't a monopoly after all.

Besides, Linux wasn't an option when Microsoft committed their crimes. Microsoft had, and still continues to have, better than 85% of the marketshare, and is guilty of using it to try to kill both Apple and Linux, and for that matter, everything else which is even remotely a substitute. They're guilty of attempting to turn the internet into a big, sad AOL clone (.NET, IIS extensions that are incompatible with competing products, abuse of html standards) and for no other reason than this would give them more of an iron grip over how you use the net and your computer.

They are guilty, even legally guilty. They are a monopoly not only in the practical sense, but also as defined by law. The executives at M$ don't play fair, and worse, when they force their products onto everyone, those products aren't even half as good as the now dead competitor. So you tell me, how could you ever possibly defend them?

Can the DOJ be taken off this case?

[mcc]

Just a question.

It is my belief, and i know the belief of most of the people on slashdot, that the DOJ is currently neither acting in the best interests of the american people or acting to see the law of the united states of america upheld.

Whether from "contributions" or bribes, or from the simple republican belief that laws should keep quiet and go play alone in their room and leave the nice Important People alone when they're trying to make money (now run along now. shoo), the DOJ seems pretty clearly to me to be currently of the belief that microsoft is doing a good job and should be let loose from the responsibilities of the good of the american people or either the letter or intent of the antitrust laws. Put plainly, the executive branch is currently against the idea of antitrust regulation.

However, it is not the executive branches job to make the law. That is the job of the legislative branch. And the legislative branch has declared anticompetitive behavior to gain monopolistic control over a market harmful and illegal. And it is not the executive branches job to decide whether extant law is valid and worthy to be carried out. That is the job of the judicial branch. And the judicial branch seems in this case to want the law to be carried out.

But it is the executive branch that is currently trying to end this. So i ask: can they be removed from this? In any way? I know nothing of law-- this is why i am asking. Can citizen groups sue to state that the prosecution of this case should be taken out of the hands of the DOJ and into the hands of the EFF or some specially-appointed board? Can the judge appoint some kind of Special Master or Special Prosecutor or someone who will be picked to actually attempt to push for the most stringent judgement possible for microsoft? (REMEMBER, it is NOT the job of the prosecutor to decide what is just. It is the job of the prosecutor to argue for the strongest judgement possible, the job of the defendant to argue for the weakest judgement possible, and the JUDGE to ensure all arguments are reasonable and find the most just and legal balance behind all. The judge should be unbiased. The prosecution is not really intended to be someone unbiased against the defendant, so it doesn't matter if the prosecutor is someone picked by Sun or Oracle or whoever; whether biased or no, the prosecutor should *act* biased against the defendant, because that is their *job*.) Can we declare John Ashcroft tainted because he recieved campaign contributions from microsoft, and have him chineese-walled away from the case?

Don't police officers and judges and FBI agents and Attourneys General of the United States of America have to swear to protect the american people and uphold the law? If the people currently trying to short-circuit the case against microsoft make it clear they are against in this case the upholding of the law, are they violating those oaths? Can there be legal repercussions for them in doing that?

A quick note to those responding: I am not *particularly* trying to start a flamewar (flamewar bad. informative comments good. HULK SMASH) on whether the doj SHOULD be blocked out of the microsoft antitrust case. I am not 100% convinced it is the best thing (just mostly :) ) The question i am asking is, technically, legally, is this a thing which is an *option*; asking "is there a law by which Sun or whoever can sue to have Bush appointees taken away from this case", not "if Sun sued under such a law, would they succeed". Is it possible under the laws of the U.S.. But respond how you will. Thanks..

Everybody is missing one key point

[gnetwerker]

Everyone commenting on this is missing one key point:

The settlement can not have as its purpose "punishment" of Microsoft. The court documents are littered with precedents that companies found to have violated the relevant statutes (Sherman Act, Robinson-Patman Act, Clayton Act) cannot be per se punished for the violation. They can be required to "disgorge" (such an interesting word) the fruits of their acts, but the finding cannot be punitive. Even this doesn't really apply to Microsoft, because they were found to have gained their Windows monopoly legally (it's legal to have a monopoly, believe it or not) buy to have used illegal means to maintain that (desktop OS) monopoly. Unfortunately the argument about illegally tying IE was overturned by the Appeals Court.

Any future settlement of this case must focus, as a matter of law, on preventing Microsoft from continuing its illegal acts. This is why 99% of the Tunney act responses were more or less thrown out.

/.ers should be focused on what needs to be done to keep Microsoft from further maintaining its monopoly, not on simple punishment. Then you might get listened to. Oh, and in case you were wondering -- someone is listening.

Re:Everybody is missing one key point

[Kwil]

/.ers should be focused on what needs to be done to keep Microsoft from further maintaining its monopoly, not on simple punishment.

We could tell them to simply obey the law.. it has everything in it already to keep them from maintaining an illegal monopoly.

Unfortunately, they've already shown that the law doesn't mean anything to them (see consent decree). So in civi^H^H^H^H our society we put people who repeatedly refuse to obey the law in jail or to death.

So how do we kill Microsoft? Easy - break up or revoke corporate charter, but the prosecution has shown it doesn't want to pursue that matter any further. (Note appeals never ruled it out completely, just said that the evidence/arguments presented so far were not enough to merit that kind of punishment - the DOJ has chosen not to pursue other arguments (like the consent decree) that might show it's warranted.)

So how do we jail Microsoft? Well, the jail metaphor doesn't really work since people can continue to live separately from society, but corporations can't. Let's go instead with a guard metaphor; some group with the express purpose of watching all of Microsofts actions to ensure they don't break the law again. The settlement provides for this in a very limited way, but gives the guards far too little power, and Microsoft too much influence over them.

Methods:

1. The inmates don't choose their keepers. Microsoft should have *no* input into the selection of the review committee. They've shown a willingness to break the law, they've shown they can not be trusted, so they forfeit any input into the selection process. They get the guard that the people appoint - just like in any jail.

2. Visitors are limited. No mergers, no buy-outs. They develop their technology on their own. They can contract work from other companies if required, but they can not take any IP rights of that work, and cannot require NDA's of those companies involved.

3. Cell-checks. The guards must have the ability to check on what Microsoft is doing. This means technically competent people must be employed (paid for by MS), and if a complaint is recieved those people review the products in question to ensure no monopoly leveraging things (hidden APIs, competition breaking behavior, etc) are present.

This doesn't require that the complainant have any access to the Windows source code whatsoever, but does require that those who think that Windows is engaging in anti-competitive behavior be ready to provide their source and their reasoning as to what they think is going on. The independant reviewers take it from there.

Also note that this requires that all future versions of Windows maintain full backward compatibility. The third party application package (or MS application) you buy today should run perfectly on whatever version of Windows is released (with appropriate MS provided patches) at the end of the settlement period.

4. No contraband. No exceptions for "security protocols" Inmates aren't (or shouldn't be) able to hide stuff in their underwear and claim privacy restrictions. Microsoft shouldn't be able to either.

Middleware definition

[rworne]

Microsoft quotes:

During his presentation to the court, Warden, the Microsoft attorney, said that the company considered the settlement's definition of middleware--including its Windows Media Player and Outlook Express--to be a major concession on its part, since Microsoft itself doesn't identify those products that way.

Of course they don't. Here's how they define it:

Digital rights management (DRM) is a method for protecting multimedia content from unauthorized playback or duplication. It provides content providers with the means to protect their proprietary music or other data from unauthorized copying and other illegal uses. DRM technology protects digital content by encrypting it and attaching to it usage rules that determine the conditions under which a user can play back the content. Usage rules typically prevent copying or limit the number of times the content will play. The operating system works with the multimedia middleware to enforce these rules.

link

What, praytell, would this "multimedia middleware" be? From all descriptions, it appears to be none other than Windows Media Player, or a subset thereof.