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Missed Opportunities in U.S. v. Microsoft

cyberlaw writes "The Supreme Court's deadline for filing a final appeal in the landmark U.S. v. Microsoft antitrust case expired yesterday with little notice. But it's a day Andrew Chin has been anticipating for six years. Today Chin, a former legal extern who assisted Judge Thomas Penfield Jackson during the drafting of the November 1999 Findings of Fact in that case, makes his first public comments on the merits of that case, in keeping with the D.C. Circuit's admonition that officers of the court should not comment on impending cases. He has written an op-ed article in today's Raleigh News and Observer.

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."

25 of 424 comments (clear)

  1. security vs economics by OffTheLip · · Score: 5, Insightful

    Sure a secure Microsoft product is what the consumer wants but so is profit margin and familiarity. Sometimes inferior products dominate the market for no good reason whatsoever, remember the Chrysler K car?

    1. Re:security vs economics by baudilus · · Score: 3, Insightful

      At the risk of being off topic, the Chrysler "K" car (Dodge Aries / Plymouth Reliant) dominated because it was cheaper than then alternatives, and easier to purchase.

      In contrast, windows is significantly more expensive, and dominates the market for a good reason: people are too lazy to change. Why do you think banks still use AS400's and code in FORTRAN? It costs too much to change now, even though there are better alternatives.

      This is why Microsloth still makes money. When you upgrade from one version of Windows to another, the front end is still basically the same. This is what users like - and they're willing to shell out $99-$500 bucks to keep their OS looking the same, but still be able to use DirectX 9000.0174x.

      Until software developers make their stuff platform independent, (or more likely, there is a fundamental flaw in Windows that cannot be "patched" which results in script kiddies taking over the world), it will always be a Windows world.

      Go fig.

    2. Re:security vs economics by 0racle · · Score: 4, Insightful

      Laziness is not what keeps banks on AS/400, and laziness is not what keeps people coding in FORTRAN. If its not broke, don't fix it. Windows does everything people want it to and will run any software you buy, so even if you showed everyone on the planet Linux, a good deal would continue to use Windows.

      --
      "I use a Mac because I'm just better than you are."
    3. Re:security vs economics by lcsjk · · Score: 3, Insightful
      "They refuse to use new technology because it might not work properly"

      You did not emphasize that enough. Sometimes you are stuck with something like Windows that has such potential for financial disaster that changing to it could be a company's downfall. I worked in a large company with a large supply of programmers. Just changing a database over from COBOL to UNIX and integrating it into the rest of the data entry system was such an effort that no manager could justify the time and effort to take the chance. I think it took about 8 years of technology change before it became painfully aware that something had to be done.

  2. Hopefully a false assumption by samberdoo · · Score: 4, Insightful

    "Internet Explorer will continue its chokehold on the World Wide Web. " Only if a better alternative is not adopted as the 'browser of choice' by the WWW community. Go FireFox!

    1. Re:Hopefully a false assumption by oDDmON+oUT · · Score: 4, Insightful
      *BZZZTT!!*

      < Don Pardo overvoice >
      We're so sorry, but it was never the "WWW Community" that chose Internet Exploder in the first place.

      It was Joe Sixpack, Ma Kent and Arthur Schmidlap, all of whom had it bundled into the nice, shiny, new computer that was sold to them as an information appliance/labor saving device by the pimply shlep at (take your pick):
      • a. CompUSA
      • b. Fry's
      • c. Best Buy
      which enabled IE to gain market share and win hearts worldwide.

      That answer will cost you five points and the lead in today's game.
      </Don Pardo overvoice>
      --
      Some days it's just not worth
      chewing through my restraints.
  3. It did it's job, now let's move on by ShatteredDream · · Score: 5, Insightful

    It slowed down Microsoft's monopoly engine long enough for Linux to rise, Apple to recover and release a very successful new OS and for groups like Mozilla to start fighting against Microsoft. Does anyone really want the court to hand a "victory" to those of us not fond of Microsoft? Does anyone think that Netscape or Sun or any of the other plaintiffs were really good, noble, altruistic companies that didn't salivate at the thought of filling in the vacuum left by a devastated Microsoft?

    The way I see it, the case was good for another reason as well. It forced debate on both sides of the political spectrum, especially the right. Many conservatives were floored when Robert Bork, a well-respected conservative legal authority, agreed with Ralph Nader on Microsoft's trial. It helped bring new ideas and attitudes into respectability on the right, and it allowed left-leaning libertarians to point to a good example of how unfettered corporate power is still a real danger.

    I would go so far as to say that the case did its job just fine, and coupled with Microsoft's recent security problems, a door is opening for free market enterprise once more. I will go so far as to say that there are a lot more Firefox users out there than we'd have previously guessed. I read comments all the time on sites like FreeRepublic which aren't known for their technical insight saying how Firefox kicks ass. In fact, of the dozens or so on threads about Firefox, most are overwhelmingly "I can't believe I ever used IE now that I have Firefox."

    Microsoft, like Rome, didn't build their Empire in a day, and thus we won't dismantle it in a day. It'll take several more years of whittling away at them on multiple fronts. We just have to learn from history and be more civilized and cooperative if we win, than the barbarians were when they took down the Roman Empire.

    1. Re:It did it's job, now let's move on by Kurt+Gray · · Score: 4, Insightful

      You make a good point that Microsoft's competitors are no more or less noble than Microsoft. But to me the most troubling outcome is Microsoft was able to prove that any company with a large enough legal budget can effectively DoS attack the legal system with appeals and paperwork while simultaneously releasing newer versions of the product in question. While the courts were arguing about Windows 95 Microsoft was already selling NT Server 4, Office 97, Windows 98, and so on. If the court even decided that bundling the web browser into Windows 95 was in violation than it was too late by then anyway.

      Microsoft also punished via stock price, in fact all of Nasdaq got punished on that fateful day of April 2000 when the judge released his initial findings not in favor of Microsoft and the Nasdaq went into freefall.

    2. Re:It did it's job, now let's move on by Anonymous Coward · · Score: 3, Insightful

      I totally agree.

      I support the free market and believe that in the long run, it fixes all problems, but I have been consistently flabbergasted at why people *choose* Windows.

      As a free marketer and based on my own experience I can only conclude that for people who don't like windows but still use it: 1) the cost of switching is too high and/or 2) people don't have enough information.

      #1 is coming down now that web apps and open standards are being used more and more.

      #2 is finally happening too. the court case probably emboldened enough companies to say "hey, maybe we should stand up to Microsoft and offer some other choices too".

      I see the changes around me. More and more people I know are switching to Mac (I just helped a guy choose a Mac today .. he had never even *used* a Mac and didn't realize that it could do all the things windows does, like run a freakin' web browser).

      It's just a matter of letting people know there are choices, and since so many people just use the web and email, it's not so hard for individuals to switch. Businesses will follow soon after.

      Besides can you imagine what kind of awful remedy the government would come up with? It would either be stifling or ineffective. The solution is to let the market decide (and please weaken copyright law a little bit so it doesn't favor entrenched power so much.. but that's another fight).

      So I would say, find, the court case helped, but please don't waste any more of my tax dollars on it.

  4. Re:Yet... by Lumpy · · Score: 4, Insightful

    Sorry but your Beloved Democrats are no different or better in any way, shape or form.

    the DMCA was signed by one of the most loved Democrat Presidents in history, Bill Clinton.

    Most Innovation Stifiling laws are proposed by Democrat Senators.

    Anyone thinking that the Republicans or Democrats are any different are really blind. The only difference they have is the way they do things, they have the same goals and agendas.

    Personally I hope for sanity in the madness that is our current government... I just wonder how many decades it will take and how far behind the United States will have to fall behind the rest of the world before those in power take notice.

    --
    Do not look at laser with remaining good eye.
  5. The Users of Windows Are Still Paying... by mslinux · · Score: 4, Insightful

    Any company that purposefully builds a Web browser (IE) into an OS (Windows) as deeply as possible and as quickly as possible in an attempt to win a court case is asking for trouble. Any software engineer with an IQ above 70 knows that this is a bad idea. The sad part about this is that people who use Windows/IE/Outlook pay the price. How many IE vulnerabilities are in the wild? Hundreds.

    In short, MS tossed sound engineeing principles out the window and placed legal and marketing concerns ahead of everything else. They deserver the shitty security reputation they have. They built it themselves... purposefully to win a court case (period).

    1. Re:The Users of Windows Are Still Paying... by fitten · · Score: 4, Insightful

      Unfortunately, that's not what it really is. IE was used as the FileManager replacement and to do many things... like do the help system, and such, and also handle http and ftp and all those other things. Basically, the idea was "why have 82 tools, each one displays a similar, but seperate thing and duplicates code, when one tool can easily do it all". With that, it needs to be a core part of the GUI.

      Now, that doesn't sound bad to me. Implementation-wise, maybe it shouldn't have been as much in the kernel and the implementation had problems (security and otherwise), but I can see the logic in having a "universal viewer" and not having to load/use 20 other programs to do the same thing, just with different data streams.

      They built it themselves... purposefully to win a court case (period).

      Funny... since the court case was *about* this particular thing, it's funny that they would have built it into the system in order to cause a court case to happen in order to win a court case with it. I think you have the order in which things happened mixed up.

  6. Re:No axe to grind in this article at all by Atzanteol · · Score: 5, Insightful

    Who'd have thought an editorial would be biased?

    http://www.newsobserver.com/opinion/story/1686331p -7930186c.html

    --
    "Ignorance more frequently begets confidence than does knowledge"

    - Charles Darwin
  7. Re:This was written some time ago. by marsu_k · · Score: 4, Insightful

    I don't know what kind of a cave you are living in. I'm all for Firefox, it's the only browser I use, but it's still a marginal player compared to IE. Hopefully this will change with time.

  8. Sharing of Code by kf6auf · · Score: 5, Insightful

    The D.C. Circuit Court of Appeals agreed, describing Windows and Internet Explorer as "physically and technologically integrated" through this sharing of code.

    Just a side note: Safari is integrated into Mac OS X (share some GUI code with the rest of the OS and probably some HTMl rendering with Mail.app) and if a user decides that he doesn't want it installed all he has to do is delete it - why can't Microsoft make this work?

    However the real question is not why can't one remove IE, but why can't there be a level playing field? Why does M$ get to use its OS monopoly to prevent OEMs from also installing Netscape, Mozilla, or any other browser? Anyway, is any of this a surprise? No; not at all.

    -Scott

  9. Re:No axe to grind in this article at all by secolactico · · Score: 4, Insightful

    Apparently no other browser ever has had a security flaw. Ever. Mozilla and Opera bugtraqs are empty files

    This isn't just about some browser's security problem. It's about software monoculturism (is that a word?).

    IE is not without merits and people will continue to use it. But it's market dominance create a chicken and egg problem: people will build web sites tailored to it, and people will use IE because the web sites are built so.

    Then if a flaw appears in the browser, *everybody* will be affected. (ok, not everybody, but the non-IE users will be so few as to be negligible).

    Of course other browsers have flaws. And those IE users that don't bother patching/updating will most likely don't bother patching/updating Firefox/Mozilla/Opera. But at least it won't affect the better part of the internet users.

    --
    No sig
  10. Its All Political by slashpot · · Score: 3, Insightful

    Here's what I got out of the article:

    The Clinton DOJ trailed to(rightfully) nail Microsoft in an antitrust case.

    The Bush DOJ was not interested in nailing Mircrosoft in an antitrust case.

    My opinionated speculative unfound but probably correct conclusion - Microsoft bought its way out through campaign donations supporting Bush.

  11. No choice by 1000101 · · Score: 3, Insightful

    I'm about sick and tired of the argument that Microsoft locks in customers by including IE with Windows installations. The fact is that there is choice in today's market. If you want to point the finger, point it at the end user who is to damn lazy to install a new browser. Also, point the finger at web developers who create web sites that will only work properly with IE. If Microsoft put code in their OS that prevented the user from installing or using a browser other than IE, I could see where that would cause concern. The fact is that they don't. I realize that many people on here will not like my views, and that's fine. I know there are plenty of things that Microsoft does/has done that aren't exactly ethical business practices. But the browser argument is old. In fact, just about every single extra application (notepad, media player, etc.) that Microsoft includes with their OS can be found from other software vendors or for free. The only people Microsoft is locking in are the computer manufacturers and other hardware companies. John Doe has more choice these days then ever before.

  12. I hate to play devil's advocate but.. by gphinch · · Score: 4, Insightful

    I hate MS as much at the next guy, excluding work where I have no choice I've moved to solely Apple and Linux, and even gotten all my friends/family to get Firefox. Implying that web pages not working in any browser but IE, however, is not entirely true. The fault lies in the hands of web developers who were too lazy/short sighted to see beyond IE compatibilities. While MS did only enflame this problem by making pages that shouldn't work actually work in IE, if these sites had been properly coded to begin with, they would have still worked in IE and also in every other browser.

    --
    in bed.
  13. Re:No axe to grind in this article at all by DarKnyht · · Score: 5, Insightful

    It was not an article, it was an OP-ED peice. Which means it is this one guy's opinion. What makes his opinion so interesting (as opposed to yours or mine) is the fact that he was involved in the Anti-Trust trial and until today he was unable to voice his opinion on this subject.

    As for his mentioning security flaws 5 times to your single mention of Firefox/Opera problems, it appears the balance between here and reality is maintained. Generally speaking, flaws in IE tend to appear 5 times (if not more) frequently than Firefox or Opera ones.

    --
    Voting them all out of office, now that's change I can believe in.
  14. Re:Yet... by Slime-dogg · · Score: 4, Insightful

    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.

    That's incorrect. The biggest expense that a doctor has is malpractice insurance. This expense is so large, that their prices are necessarily high. Most doctors end up taking home a small percentage of the revenue.

    Malpractice insurance is a result of the greedy Americans who file for damages. There are those who have legitimate cases, and they ought to be rewarded, but there are a ton of frivolous malpractice suits as well. Health costs come down to the greedy American looking for a big payoff with minimum work.

    The other reason why expenses are so high is the barrier to entry into the market. Many patents on pharmaceuticals run out by the time the company has met federal requirements. This seriously reduces the amount of profit that the company can gain off of their work before knock-off pharm companies start producing the same medicine.

    If the FDA eased off on the drug regulations, and maybe let the patent law for medicines change, then medical costs would be reduced. Things always get more expensive when the 800 pound gorilla of American government decides to get involved.

    --
    You need to restart your computer. Hold down the Power button for several seconds or press the Restart button.
  15. capability, not code by Rufus88 · · Score: 4, Insightful

    Windows and Internet Explorer software products actually consist of legal rights and technological capabilities, not lines of code

    Uh huh. And an RIAA product contains not waveform data, but rather the capability to produce pleasing auditory sensations in a subset of the population.

  16. The DoJ pushed the wrong solution. by MtViewGuy · · Score: 5, Insightful

    In my humble opinion, I think the Feds pushed the wrong solution in the US v. Microsoft case.

    Why didn't the Feds push for separating sales of the operating system from the hardware? By pricing the operating system as a separate cost item it would have actually enhanced competition for the operating system market on x86-compatible PC's, and it would have encouraged the FreeBSD and Linux crowd to develop their operating systems much faster because there would be a truly healthy competition of what operating system you want install on your computer.

  17. Re:This way they have more time to fight other stu by CmdrGravy · · Score: 4, Insightful

    "You don't give your enemy a place to hide and regroup. That's why we went into Afganistan."

    Yes, that was obviously a visionary and practically effective policy wasn't it. I do think however that it was undermined somewhat by the subsequent invasion of Iraq.

    Cynical types may think that after this excellent corrective measure Afghanistan is now a no go area governed by local warlords fighting for control of the burgeoning heroin trade whilst the on-going situation in Iraq is drawing much larger numbers of impressionable young men into the world of terrorism and intimidation and that the world in general is now much more likely to suffer from terrorist activities.

    Even more cynical types might surmise that as the US Government came to terms with 9/11 and realised there was little they could practically do in public to "right the wrong" decided instead to put on a display which everyone could understand with an invasion of Afghanistan involving lot's of precision weaponry, terrorists lurking in caves and illegal combatants during the course of which they realised there was a good chance they'd get away with more the same in Iraq.

    Luckily I am not a cynical person. Go USA, Kick That Terrorism To The Kerb !

  18. easy solution: by Kaenneth · · Score: 3, Insightful

    If websites stopped serving pages to Internet Explorer, users would be forced to install another browser. Or, for example, if IE is detected add an extra large banner promoting a Mozilla based browser. Instead of 'Best Viewed with Internet Explorer', it would be 'Worst Viewed'

    that reminds me of something else I was thinking of...

    Websites and other internet services should start denying services to 'bad' net citizens, a sort of global blacklist.

    Say everytime a monitor machine recieves a spam email, a ddos attack, worm propageation attept, etc; it sends a note to one of the blacklist servers. The blacklist server won't instantly list for one bad action, but would require multiple monitors to report a problem with an IP address.

    every once in a while ISPs, Servers, Service Providers (think perhaps Battle.net, Steam, web-comics, free e-mail providers, along with free/cheap hosting providers) would download the current list, and start providing blank/warning pages to any requests from those addresses. Corporate internet connections could just outright block any packets at the firewall.

    8 bad IP adresses in a C block, blocks the whole c block.

    The Monitor servers would have to be authenticated and somewhat secret, otherwise false reports could be used to deny service to a target or the IP addresses excluded from future worm versions and the Blacklist distribution security would still be an issue (if served normally, it would be a DDOS target, if 'push' delivered, it could be spoofed without good authentication.) I'm thinking of a USENET style list distribution method. a listing would also expire fairly quickly.

    The distiction with this being, that it's cross service. You send bad e-mails, your web browsing is blocked. You run an open proxy, you can't send e-mail. You have a worm?, you can't play Counterstrike. You run a Starcraft cheat? you can't instant message.

    The exclusions would have to be customizable, you wouldn't want to block someone with a worm from downloading a virus remover, or otherwise seeking assistance, but they don't need to play an online game before fixing it.