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Missed Opportunities in U.S. v. Microsoft
Chin is currently an associate professor teaching antitrust and intellectual property law at the University of North Carolina. According to his faculty biography, Chin also earned a doctorate in computer science in 1991 as a Rhodes scholar at the University of Oxford. After a few years of teaching math and CS, he picked up a J.D. at Yale Law School, and eventually ended up working behind the scenes on the Microsoft case.
Chin's article raises some new points about the Microsoft case that don't seem to have been considered by any of the parties, courts or commentators during the trial, such as the fact that the Windows and Internet Explorer software products actually consist of legal rights and technological capabilities, not lines of code. A longer piece by Chin is being published in the Harvard Journal of Law and Technology."
For more enjoyment and greater efficiency, consumption is being standardized: http://www.newsobserver.com.nyud.net:8090/opinion/ story/1686331p-7930186c.html.
I think they can smell burning in the server room at the Observer...
A case of insecure browsing
Exploring missed opportunities in the Microsoft antitrust suit
By ANDREW CHIN
CHAPEL HILL -- United States v. Microsoft, the most celebrated antitrust case in a generation, quietly ended its six-year run Wednesday, as the Supreme Court's deadline to file a final appeal passed without a whimper from any of the parties. Little comfort can be taken from the legal system's silence.
Now, there will be no final ruling on whether Microsoft illegally tied Internet Explorer to Windows. Internet Explorer will continue its chokehold on the World Wide Web. Even worse, the law of competition in the software industry will remain unclear and unstable.
The government wasted its best opportunity to avoid this result three years ago, when the incoming Bush Justice Department, in a stunning reversal, decided to drop its "tying" claim. Still, the road not taken -- pressing Microsoft to offer a neutral choice of Web browsers for use with Windows -- started to look a lot more appealing this summer, when Internet Explorer's security flaws made national headlines.
Many commentators, including the Department of Homeland Security's computer emergency readiness team and even Microsoft's own online magazine, Slate, recommended that Windows users switch to a more secure Web browser.
But switching can be difficult. Windows users who want to access a document on the Web are sometimes required to use Internet Explorer, flaws and all, even if they have chosen a different product for that purpose. Given the inconvenience of using two different products for the same purpose, many Windows users do not bother to try other browsers. By tilting Windows users toward Internet Explorer in this and other ways over the past nine years, Microsoft has ensured that many consumers are using a less secure browser than they would if offered a neutral choice, and prevented other software companies from competing for these customers on the merits.
The Clinton Justice Department proved all of these facts at trial. Yet the lower courts did not move to restore freedom of competition in the market for Web browsers, because they found Microsoft's appeal for freedom more compelling.
According to Microsoft, antitrust law should never require changes to the design of software products, because this will chill the freedom of programmers to innovate. One such innovation was in writing the shared blocks of code that support both operating system and Web browsing functions in Windows. The D.C. Circuit Court of Appeals agreed, describing Windows and Internet Explorer as "physically and technologically integrated" through this sharing of code.
Microsoft's argument might make sense if its freedom to design software products ended when the last line of code was written. But a software product does not consist of code. If it did, you would own the Windows code on your computer and could sell copies of that code with impunity.
Actually, what you own is a license consisting of certain legal rights derived from Microsoft's copyright in the Windows code, together with the technological ability to use the code with your computer in the exercise of those rights. (Similarly, when you buy a movie on a Region 1 DVD, you acquire a license to view it at your home in the United States or Canada, and the technological ability to play the DVD in those countries but not others.)
As the sole author of the license contract, Microsoft enjoys considerable freedom in defining the extent to which consumers are able to use the Windows code.
But freedom of contract is expressly limited by the antitrust laws. The courts therefore had authority to order Microsoft to license and distribute its software so as to offer a neutral choice of Web browser. Microsoft could easily have done so without undoing its programming innovations.
Instead, the D.C. Circuit Court of Appeals created a special antitrust immunit
I'm not wrong. You haven't thought about it hard enough.
I can't even point out that his post isn't flamebait? Abusing the moderation system makes this forum less enjoyable for everyone.
"A witty saying proves nothing." ~Voltaire
"d'Oh!" ~Homer
Whoops stupid wrong button, meant to preview that. The line that says "Implying that web pages not working in any browser but IE, however, is not entirely true." should read:
Implying that web pages not working in any browser but IE is the fault of MS, however, is not entirely true.
in bed.
Why do you think banks still use AS400's and code in FORTRAN?
FORTRAN is for pipe stress freaks and crystallography weenies. The language of choice for banking is COBOL.
If MS had an illegal monopoly on operating systems for x86 computers, how come there are more now than at anytime in history?
There are more operating systems in use now for x86? What ever happened to the various flavors of DOS (Dr DOS, IBMDOS, etc.), GEM, Xenix, OS/2, BeOS and several others?
Hmmm... is seems they were all killed by Microsoft's supposedly non-monopolistic competition. Sure, Linux is more popular than ever, but Microsoft's OSs are by far the most dominant operatings systems and has been for some time.
Not quite.
It is logical and reasonable for Dell or HP to bundle a browser (or whatever) since they actually sell to end users. It makes no sense for Microsoft to do this since they are completely unwilling to support this decision. Instead, they force the likes of Dell to buy something they don't want while forcing the same OEM to clean up the mess afterwards.
The "customer" being screwed by Microsoft is not the "end user" but OEMs.
End users just get caught in the crossfire.
A Pirate and a Puritan look the same on a balance sheet.
So far as I know nobody else has integrated the browser and the desktop in anything like the way Microsoft has done. Providing an embeddable browser or HTML rendering engine is not the same as using the same component to access, interpret, and render both trusted and untrusted documents.
The security implications aside, you can look at KDE as an example. They use the same rendering component/framework for file-browsing as web-browsing. Look at the description on their site: "Konqueror is the file manager for the K Desktop Environment. It supports basic file management on local UNIX filesystems, from simple cut/copy and paste operations to advanced remote and local network file browsing. Konqueror is the canvas for all the latest KDE technology, from KIO slaves (which provide mechanisms for file access) to component embedding via the KParts object interface, and it is one of the most customizable applications available. Konqueror is an Open Source web browser with HTML4.0 compliance, supporting Java applets, JavaScript, CSS1 and (partially) CSS2, as well as Netscape plugins (for example, Flash or RealVideo plugins). Konqueror is a universal viewing application, capable of embedding read-only viewing components in itself to view documents without ever launching another application. "
With a few modifications that would describe IE/ActiveX/Explorer just about to the letter (remove open source, of course).
If that was the case Microsoft wouldn't have a desktop monopoly to leverage into a browser monopoly in the first place.
I beleive they dont have a monopoly, to be honest. There is so much choice in terms of x86 operating systems that it's bizarre that anyone could claim they have a monopoly. Add into the mix Apple which competes with MS on every front as well as other bit players (for example, if someone makes a device that eliminates the need for an OS, does that make them a competitor? I believe so. That means in terms of share MS competes with makers of things like set-tops boxes and consoles).
I am disappointed by the Bush administration's handling of the case but the fact is that the case would have _never_ happened if the first Clinton DOJ investigation hadn't ended in the consent decree.
So how do you get from that to "don't blame the Bush administration"?
I know this is going to seem a bit radical, but how about we DO blame the Bush administration for the things that the Bush administration got wrong and ALSO blame the Clinton administration for the things that the Clinton administration got wrong?
I know you're thinking "but that's like being all rational and sensible, can't we just play some stupid politics game where we each pick a side and defend them to the death regardless of reality"? but frankly, that's been done. It got boring many decades ago.
Nothing Clinton did excuses anything Bush did. Nothing Bush did excuses anything Clinton did. Nothing Gore might have gone on to do excuses anything Bush did. And on and on. Get it?
I'll give you one thing though. Citizens carrying firearms does, indeed reduce violent crime rates. Nothing like the sound of a shotgun to make a criminal bug out. CH-CHEK.
That's simply not backed by the facts. Countries with less guns such as many in Europe, South America and Asia have less violent crime. Canada with more guns also has less violent crime. It seems gun availability on in a country has no proven effect on crime. However, there is some evidence that guns availability in large cities increase crime.
FYI I don't think any sane person who hasn't been convicted of a crime should be prevented from buying any weapon available on the market. I don't think any government should know whether you own a gun or not. And, I do think that it's ok to require anyone selling a gun or giving someone a gun do a simple background check.
Small Edit: Nothing like the sound of a shotgun to make a criminal bug out and shoot you.
Until a president has the balls to say that doctors, hospitals and parms are EXTORTING the American public and make laws to stop them it will not change.
Disclaimer: My wife is a doctor
Okay, let's just take a quick look at some numbers:
From the UAW a UAW represented assembler makes $25.63/hour straight time. This translates to over $53k/year assuming no OT. To my knowledge (quite possible wrong) to obtain this job, you need only a high school diploma. They report post inflation annual raises (from '92-'02) of 1.28%. Average college costs ~$20k (average of public and private, exclude out of state) and is rising by 7% each year. In 1999 med school cost ~$18k (again taking a conservative average), I couldn't find numbers for the annual increase, but given the costs we incurred, 7% is a reasonable number again. Books add even more, to the tune of ~$4k across the first two years. Let's look at a doctor's income stream vs. a UAW assembler assuming they are the high school class of 2003:
First year out of high school, -20k vs. $53k
second, -21.4k vs. $53.7k
third, -22.9k vs. $54.4k
forth, -24.5k vs. $55.1k
Onto medical school we go!
1st year, -25.6k (no inflation for books) vs. 55.8k
2nd year, -27.2k vs. 56.5k
3rd year, -27k (assume no more books) vs. 57.2k
4th year, -28.9k vs. 58.7k
Time for residency, pay based on my wife's:
1st year, 31k vs. 59.5k
2nd year, 31.5k vs. 60.2k
3rd year, 32k vs. 61k
OK, now our doctor is ready to go out and start making real money....where do they stand finacially?
-$83k vs. $567.9k
Most of my wife's medical school friends enter residency with school loan payments to the tune of $1,200/month, basically a second mortgage. So now our doctor gets to go to work. Care to guess how much this doctor is going to get paid for seeing a child on medicaid? $7. Yes, that is right, they will get the princely sum of $7 to see that child for a 15 minute visit. That will probably not cover the cost of the people they must hire to file the paperwork to get paid. That works out to $28/hour while our assembler is now earning $29.48/hour (this is an inflation adjusted number, that means the real number will be much higher since 1% inflation is pretty darn low!). Who was it that was extorting whom? Does that auto worker go to work every day knowing that they could get sued and have everything except their house taken from them (my wife was threatened with lawsuits 3 times as a medical student for Pete's sake! Care to guess how much her malpractice insurance premiums are estimated to be? Over $20k/year.)? Yes, doctors can get paid well, but I would say in many respects they have earned it a lot more than others.
I'm sorry for this rant, but people who just spout off like doctors in general are super greedy really irk me (for obvious reasons). The people you need to be more concerned with are the insurance companies (basically profit generating machines from my perspective) and the lawyers (who make my wife live in constant fear that we will have everything taken away from us someday...oh wait, we get to keep the house and its mortgage).
Before commenting on legal issues, it would be a good idea to learn what the laws are. I'm sure plenty of posts will explain it, so, you should probably read them.
The short story is: a monopoly in one market cannot be used to gain a monopoly in another. Once again, yours or my definition of monopoly doesn't count for anything, it's the legal definition that matters.
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I have never been billed for a $7.00 doctor visit. Never. Your basing your entire calculations off of a ficticious situation. Lets base it off of what a doctor actualy charges shall we? Use real numbers, post the calculations again, and then maybe someone will cry for you.
Do you read the EOBs (Explanation Of Benefits) you get from your insurance company? What the doctor bills and what the doctor gets are vastly different amounts. Doctors that take insurance have to agree to accept the amounts the insurer deems fair for whatever service they provide. Medicare is an extreme example in some respects, but it's not far off. I believe my doctor gets around $15 from my insurer (Blue Cross) for a 15 minute office visit. From what I understand Blue Cross pays better than many insurance plans, and it's also a PPO, not an HMO and I know it pays more than HMO plans do. Adjust his figures to an average of about $10 for a fifteen minute visit and the financial picture doesn't get much rosier.If you don't have insurance I apologize, but doctors depend mainly on patients with insurance to pay the bills. (Most people without insurance can't afford to visit a doctor even as much as they need to, insured people generally can due to lower costs to them up front.) Doctors rarely get paid what they bill for an office visit so you cannot base your financial assumptions on the billed rate. I should also note that many pay more to get a better insurance plan that will pay for more options. Those plans also often pay the doctors more. In my case insurance is a fully-paid benefit so I pay no more for the PPO plan over the HMO ones beyond a higher deductible and out-of-pocket. For me it costs less than having a copay for office visits, but for many the copay is more affordable so they stick with HMOs.
I'm guessing, but I believe the grandparent's wife is a pediatrician (he mentioned only the amount paid for a child's visit). Insurance may very well pay less on average for a child's visit than an adult's. I do believe that doctors get more than $7 to see an adult on Medicare, but I'm not certain of the numbers. (I'm an IT person but my Mother has worked at doctor's offices for years as office personnel so I hear about a lot of the costs. I also always check my EOBs so I'm aware of what my own insurance pays my doctors.)
Why does M$ get to use its OS monopoly to prevent OEMs from also installing Netscape, Mozilla, or any other browser?
d f)
They don't. Never have, either, AFAIK.
They used to do exactly that. That is a big chunk of what this case was about.
Now, under the final judgement, they have to let the OEM install 3rd party middleware products but may, after 14 days, nag the user indefinitely to switch back. They may also run the equivalent MS product (ie: media player) instead of the 3rd party product whenever "necessary for valid technical reasons to supply the end user with functionality consistent with a Windows Operating System Product.". This would be whenever they want since anything else could easily be argued to be "inconsistent". Finally, MS also has the right to UNINSTALL the 3rd party prduct whenever the consumer installs a new version of Windows (with no limit on what constitutes a "version".)
So basically the OEM may now install 3rd party software. In exchange, MS may, with a few very minor restrictions, program windows to ignore it, uninstall it or punish the user for continuing to use it.
(http://www.antitrustinstitute.org/recent/163.p
I find it insulting in Canada, with our Doctor shortage and all, that they still dictate how much a doctor can make. Imagine if they tried that crap on any other industry? Oh, your a computer geek, you can only make 52k a year. HA! No wonder we can't get doctors.. If they're gonna tell you how much you can make, then they should pay to train you IMNSHO! This issue is so screwed up here..
We have lazy hospital staff that sit around bs'n while many people wait 4 to 8 hours in an emergency room, only to be diagnosed and released in 10 minutes. It kills me because the people get pissed about the wait, complain to the gov't, and the gov't throws MORE money at the problem instead of making the doctors and nurses acountable for their time. We've seen doctors spending most of their time filling out papers.. bloody ridiculous. Only in canada eh? we sure don't have it solved up here so don't believe any of the propaganda of our "superior system". /rant
I'm not anti-social, I'm anti-idiot.