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."

Comments

security vs economics

[OffTheLip]

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?

I wonder....

[The Bungi]

I often wonder what would have been the reaction if some judgement had been passed against, say, the FSF or a contestation of the GPL or something like that, which had been negative, and then we'd seen the presiding judge (the fucking judge) giving interviews to Barb Walters and doing the DC clubscene (well that's a bit too much).

I'm not about to contest the verdict - that a monopoly existed and so on. That's done. But I think the whole thing smacked of a hurried witch hunt decided from the beginning. Back then Microsoft was pretty much apolitical and their legal team was about a fifth of what it is today. Since that case they've wised up to lobbying and campaign contributions as a way to "play" the system, just like any other big corporation in this country.

Ah well.

Re:I wonder....

[danheskett]

You've got it pretty close to right. MS was the prototypical non-player. They had no lobbying force. They had absolutely positively no involvement - ever - in any national political campaign or movement.

Both Clinton and Gore personally soliticed donations from Microsoft for their campaigns. MS refused. The RNC soliticed for donations. MS refused.

When the DOJ began talking to Netscape, IBM, AOL, Sun, and Apple - who of course had large lobbying arms (especially Netscape, Sun and IBM), MS had absolutely no-political covering-fire.

Regardless of the merits of the case, it is nearly 100% certain that MS would not have been brought to court if they had have not refused advances for donations.

Today, MS has the pre-eminent legal and lobbying team for just about any corporation in the country. They shower money and praise on legislators of all stripes. They routinely make donations to even sure-fire losers in elections just in case someone drops dead.

MS may be big, but they aren't stupid. In less than 10 years they went from a political non-entity to a political-powerhouse.

It did it's job, now let's move on

[ShatteredDream]

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.

Re:No axe to grind in this article at all

[AndroidCat]

This guy mentioned Explorer security flaws 5 times on that page alone.

That's because Internet Explorer has a lot of security flaws.

Re:No axe to grind in this article at all

[Atzanteol]

Who'd have thought an editorial would be biased?

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

Sharing of Code

[kf6auf]

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

Re:Analysis

[argent]

Microsoft was right. Using this method of integration is very common place now.

I would appreciate it if you could document this claim. 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.

If anyone else is doing this, rather than merely providing an HTML renderer or an embeddable (but still sandboxed) browser, then they need to be encouraged to find another path. One example: from what I've seen so far of Apple's Webkit, it's not taken that step. But... I haven't seen Tiger and Dashboard, so I don't know if they've stepped over the line there.

Every time this is brought up some Microsoft apologist writes something like "MS's argument all along was that it's market share was at risk, and that any moment, a competitor could grap the reigns and win back the web. [...] Low and behold, the best browser on the market is free, open source, and multi-platform. On top of that, other browsers like Opera are low-cost and multi-platform (and also superior)." and then, after a few months and years and IE has kept its market share, they never come back and apologise for their naivete... they just make the same claims again the next time it comes up.

And in any case, as I have pointed out, the BIG problem with IE has nothing to do with competition, it's the security problems. They've been glaring and obvious for seven years now, and it's only in the past few months that Firefox has begun to make some tentative inroads into its market, and not because it's better but because people are losing confidence in Microsoft's security. If Microsoft can reestablish that trust (whether they address the underlying problems or not), they'll get all that lost share back again.

You cannot corner the supply side of software!

If that was the case Microsoft wouldn't have a desktop monopoly to leverage into a browser monopoly in the first place.

Re:No axe to grind in this article at all

[DarKnyht]

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.

rights and restrictive licensing

[Astro Dr Dave]

From the article:

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.)

Does anyone else find this disturbing? Since when do companies have the right to tell us what we can do with our software, or in which countries we can view movies? Of course the DMCA has clauses for access control, and the impetus for that was corporate lobbying. But I don't understand the legal basis for this; why do the courts allow copyright owners to control how their products may be used?

Re:Yet...

[Epi-man]

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).

The DoJ pushed the wrong solution.

[MtViewGuy]

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.