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Close out to Microsoft Anti-Trust Case
duder writes "It appears that both sides in the Microsoft anti-trust suit are filing the closing arguments according to the Washington Post. " It doesn't look any surprises-CNNfn has an additional update as well. The DOJ and MS have filed sharply contrasting legal briefs-Microsoft claims there's competition, citing Sun and Red Hat, the government claims they have a monopoly. And give the US justice system, I'm sure we'll see the end to this case sometime shortly after Rob actually finishes reading Cryptonomicon.
I got to thinking about that. I thought, why restrict this reasoning to just computers?
So I picked up a blue Bic ballpoint pen in my hand, and I am declaring it now an integral part of my body. I am obviously not Homo Sapiens any more, since I am now distinguished by my ability to write indelible marks on certain surfaces without the need for any additional, separate tools. To paraphrase Microsoft's argument:
There are several ways to create marks on paper. One way is to use a pencil or a pen. Because that is the choice most people make, it's commonly accepted that a pen is a separate tool. But the writing-related abilities in my new body comprise many elements, including the muscles in my hand and forearm and the clicky thing on top of the pen that I can make noise with. Depending on the context, it's common for me to use the term "pen" to refer to any one of these elements, but this does not mean that the pen in my hand is a separate tool like the pens that other people use. Although I have other pens which I loan to people sometimes, there is no identifiable "pen" which can be excised from my body without degrading my basic capabilities: if you remove the pen from my hand, then I lose the important ability to create marks on paper, and the pen is useless when removed from my hand. I got this pen from a K-mart at the same time as I got some deodorant and potato chips, so it's obvious that this pen is simply one element of a larger plan which affects my entire body and how I interoperate with other people. Rather than view this Bic as a pen that sits in my hand, it is more correct to view my hand and forearm as an advanced writing implement which is capable of many various tasks. My psychiatrist contends that people universally regard pens as tools and not as part of the human body, but he offered only anecdotal support for that "proposition" whose relevance is dubious anyway.
Look guys... I would think that most of the people reading this page would have heard by now the legal definition of monopoly under the Sherman Anti-Trust Act. It is NOT the same as the common sense definition people keep arguing under.
A monopoly, in legal terms, is simply having enough market share that you can exercise a profound influence on the entire market. There have been succesful cases where the "monopoly" was only about 40% of total market share -- don't even try to tell me that Microsoft doesn't meet that definition!
Also, being a monopoly is perfectly legal! We have all kinds of monopolies, and they are completely legal! However, when you are a monopoly, there are certain things that you are not legally permitted to do. For example: you cannot use your monopoly power in one market to strong arm your way into other markets or engage in predatory pricing.
The question here is not whether Microsoft is a monopoly: it is obvious that within the terms of the Sherman Anti-Trust Act they are (all this "we have competition" talk is just a pseudo-populist smoke screen). The question is whether they (a) used there monopoly in the OS market to get into the browser market and (b) engaged in predatory pricing in the browser market.
That's all -- did they do those things??? If they did, then they should be found at fault in this trial to the full extent of civil liability. That's the law, if you don't like it change it. But we don't have ex-post facto laws; they are still responsible for their actions prior to any change in the anti-trust laws.
FWIW, IMNSHO they are guilty as sin and should be brought to task for the above and for their deliberate attempts to subvert the american political system. I think these attempts border on sedition. But that's another question.
-- Slashdot sucks.
Things have been going badly for Mr. Gates ever since Monsieur L'Entarteur, Noel Grodin, made him a present of a tasty cream pie. First the antitrust suit, then the arrival of Linux on the public consciousness and rapid exponential gain in popularity. In true Sumo wrestler style, he's tried to fend off one attack with another, pointing at the rise of Linux as a reason why he can't be a monopoly.
But the case isn't about what's happening now; it's about whether Microsoft had behaved illegally prior to February 1998. The DOJ can silence this line of argument with one simple suggestion:
"You only now have competition *because we're suing you*. You behaved illegally, so we dragged you into court. Now you're having to behave yourself to stand a chance in the trial, it's not as easy for you to tell people "you'd better buy our product because all our rivals are doomed", and competition is returning to the marketplace. But if the court allows you to get away with the way you used to behave, you'll be back to the usual FUD, lock-out, and illegal monopoly behaviour faster than you can say 'not guilty'. Your honour, I put it to you that this behavour can only be brought to an end if we THROW AWAY THE DAMN KEY!"
Anyway, I'm sure it won't matter. They've *really* pissed Judge Jackson off, and now Microsoft are going to lose so badly your head will spin in two directons at once. And they'll find it very hard to appeal the decision - especially after they jail Mr. Ballmer for perjury...
We keep winning, don't we?
--
Xenu loves you!
The full text of the DOJ filing can be seen here, the Microsoft filing can be seen here.
At first glance the DOJ filing is a well-constructed set of arguments based on the evidence presented during the trial, the Microsoft one is full of anti-government rhetoric and outright contradictions. YMMV though.
--Coke