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Microsoft To Go Straight to the Supreme Court?
Seth Scali writes "It appears that Microsoft's appeals might not take as long as everybody thought. According to an article in the New York Law Journal, it seems that an obscure federal law, called the Anti-Trust Expediting Act, could allow the DoJ to skip the regular appeals process and take it straight to the Supreme Court. Since the judges in the federal appeals court were sympathetic to Microsoft last June, there's a very real possibility that the DoJ would make use of the law. "
The key issue to me is control over the Application Programming Interface, and the ability to create and sustain middleware.
I think that the judge understands this. and I'm hoping that he chooses the correct remedy:
(1) Microsoft should be forced to openly publish all of its APIs.
(2) They should be prohibited from utilizing any API that has not been completely disclosed.
(3) They should be forced to provide correction, clarification and explanation, when the behavior of any API differs from the published specification, or is unclear or appears to be in error.
(4) They should be forced to disclose all new APIs as they are created, to facilitate third parties' efforts to make their software compatable with Microsoft software.
Microsoft should NOT be forced to reveal its source code.
This would be bad for the open source movement, because:
(1) It would open free software authors, especially the WINE authors, to charges of copyright infringement. Right now they are in the very powerful position of having NEVER SEEN Microsoft's code, so they have NO cause to claim copyright infringement or misappropriation of trade secrets. In short, they would lose their "clean room".
(2) Programming compatability efforts should always stem from published APIs, rather then Microsoft's buggy code.
Source code alone is NOT an acceptable substitute for published APIs. Just forcing Microsoft to reveal its source code would NOT stop Microsoft from continually shuffling bugs around in order to break competing software. Just being able to see the source code doesn't matter if each OSR release of Windows deliberately breaks your code. You'll still go bankrupt because Microsoft software would continue to work from release to release, while your code would break with each OSR version, and you'll never be able to keep up.
Breaking up Microsoft would not benefit consumers the way that the breakup of Standard Oil benefited customers.
Breaking up an oil company creates a number of different companies, each of which produce an identical, standard product. These companies must then compete on the basis of customer service, product quality, and product pricing.
Microsoft cannot be successfully separated this way.
There are two different scenarios for a breakup of Microsoft:
1) Breakup along product/service lines. The result is several companies with very close ties that are not in competition with each other. Multiple monopolies instead of a single monopoly. This does not benefit consumers.
2) Breakup into several competing companies, each of which obtains the right to all existing Microsoft software. The result would be the fragmentation of all Microsoft programs. Eventually, one of these "baby bill" companies would come out the winner, while the rest of the Microsoft spinoffs wither away and die, and we are left back at square one.
The important thing to realize here is that, unbelievably, this case is somehow bigger than Microsoft. If 4 years from now, this case is appealed to the Supreme Court, there is a chance they could turn down the case as no longer being worthwhile if MS has lost it's position of power. That would completely lose the point of this case--it's not whether or not MS is a monopoly (it is) or whether it abuses that position (it does) but whether or not the US government has the right to tell any software company that it can't use any means necessary to gain market dominance. This is where the true importance of this case lies, and the Anti-Trust Expediating Act may be the only way for the Supreme Court to really make that decision. There could be another MS in a related market years from now, and it would be nice to be able to stop them before it was too late.
~=Keelor
Netscape and Sun, with Navigator and Java respectively, could not clone the Win32 API (IBM tried doing that with OS/2, and gave up), but they tried to make it irrelevant.
Both products had (or tried to have) APIs that were the same across platforms. If these products become technically successful (instead of being "write once, debug everywhere") and gain enough market share, then third-party software developers will be able to write programs in Java, or programs using the Netscape APIs, and they will work on any platform that supports Java or Navigator. If enough third-party applications depend on Java, Navigator, Lotus Notes, Perl/Tk, or some other cross-platform middleware application, then people investigating a non-Windows operating system would have a lot more applications to choose from -- and Microsoft's monopoly goes bye-bye.
When Microsoft realized that they faced this competitive threat, they exploited the monopoly power they already had to attack Navigator and Java. To boost Internet Explorer's market share, Microsoft employed several strong-arm tactics that only could work because of Microsoft's monopoly power, and could not be justified (in the judge's opinion) as attempts to make things better for the consumer. Examples given in the FoF:
Economists and business analysts could argue about whether or not all these things harmed consumers, and in fact both sides did argue about this in front of the judge. It's a judgement call, but this is the sort of judgement call that judges are paid to make.
Microsoft could have responded to the Navigator/Java/etc. threat by concentrating their resources on improving Windows -- just as Intel responds to AMD and Cyrix by trying to improve the Pentium. But merely building better products wasn't enough for them; they used every technique they could get away with to punish their competitors, using the sorts of punishments that only monopolies can mete out.
The judge hasn't issued his findings of law yet, and IANAL, but... Guilty, I say! Guilty, guilty, guilty!
send all spam to theotherwhitemeat@ropine.com
>>monopoly price of $89 rather than competitive
>>level of $49.
>Baloney. This is a very standard price for a
>large software package for Windows.
Utterly irrelevant to the market power question
>Is Apple a monopoly too?
again, irrelevant.
What matters, as is explained at length, is that the price comes not from the market, but from monopoly profit maximization. That's illegal. If you don't like it, work to change the law.
>>refusal to deal with IBM--limiting consumer
>>choices.
>Looks to me like IBM is selling Windows
>computers.
After being forced to capitulate to the demands to remove products that were seen as a threat to the windows monopoly--an illegal use of monopoly power. If you had read the document, you would have found that the licences came 15 *minutes* before the release of W95.
>Besides, there are lots of other
>companies that sell Windows-equipped computers.
>Would it really be that big of a deal if one
>company didn't have it?
If it's because that company was denied access to windows for providing choices and options that consumers wanted, yes. Which, those of us who read the findings found, is what happened.
>>blocking distributiona of netscape as a choice.
> Consumers can download Netscape in a matter of >minutes.
Like the rest of these, well documented in the FofF. This doesn't happen unless there is a compelling reason. Netscape doesn't need to be better, but amazingly better before any noticable share do this. In the meantime, blocking the initial access prevents the development of the API.
>> overriding consumer's choice of other browser
>>and forcinguse of IE
>I haven't used Windoze much, but the few times I
>used it Netscape seemed to work just fine.
>At no point was I "forced" to use IE.
Once more, you are ignoring the contents of the document. IE is launched in some circumstances *regardless* of the choice made. Developers had to agree to use IE and it's help mechanism to get early access to needed technical information--that is, they had to agree to help lock out netscape.
And an ms executive is quoted as saying that ms must make the use of any other browser a jolting experience. Again, information readily available to those of us who read the document rather than making up contents to attack.
>> revoking licenses of OEM's for accomodating the
>>choicesdesired by consumers
> As I understand it, this practice has already >been curtailed,
This was not part of the earlier consent decree. And curtailing it after the fact doesn't change that at the time it was committed (Compaq's W95 license *was* revoked), it was an illegal use of monopoly power.
>and it is arguably a net harm to
>consumers over giving Windows indiscriminately to
>all comers.
It's not about "indiscrimately." It's about "give the consumers a choice other than MS in browsers, and you can't sell windows."
>But isn't this within Microsoft's rights?
Only with radical changes to U.S. Law. Tying, leverage, refusal to deal . . .
>Besides, the only reason that this tactic worked
>was because almost all customers *do* want
>Windows.
So? It is illegal to use the power from a legal monopoly to charge a higher price, or to create another monopoly.
And it's not Windows that consumers want, but the applications that run under it. If there were a choice (the netscape API), consumers could behave differently. *This* is what ms is trying to prevent.
> And there are a few computer makers that will
>sell you other OS's, so what's the problem?
Committing just about every single act prohibbited by antitrust law? Destroying a competitor for the sole purpose of protecting the windows monopoly? Forcing higher prices, lower reliability, lower performance, and less choices on the consumer (again, each of these is documented).
hawk, esq., making the cardinal mistake of arguing with a troll . . .
I, for one, hope that the DoJ does not decide to go with the 'expedited' route. Let me explain why.
There are three courts directly involved in this case: Judge Jackson's district court, the DC circuit appeals court, and the Supreme Court. We already have a very clear idea where two of those three courts stand on the issue. Judge Jackson is clearly in agreement with the government; his findings of fact were even harsher than the government's proposed findings in a number of places. The DC circuit appeals court clearly leans much more towards Microsoft's side of things; the language they've used in rejecting many of the government's arguments on appeal makes that clear. Only the Supreme Court is largely a question mark at this point, since they have yet to have occasion to weigh in directly on the issue.
Let's assume, for the moment, that the case is not expedited directly to the Supremes, and instead follows the usual route. Judge Jackson's court will make its findings of law, which will almost certainly go heavily against Microsoft. Microsoft will almost certainly file an immediate appeal at that point, asking the DC circuit court to review the conclusions of law before the district court starts deciding the remedies. That request will almost certainly be granted, and the circuit court may well reverse some of the conclusions of law. Then the remedies will be decided on, and those will almost certainly be appealed as well.
Ultimately, of course, it will all wind up at the Supreme Court. They do have the option to refuse to hear the case; but in a case as important as this one, that's very unlikely. So the Supreme Court will make the final decision, based on both the district court's and the appeals court's findings.
On the other hand, if the DoJ 'expedites' things, both the conclusions of law and the penalties will be decided on at the circuit court level; then the whole thing will go to the Supreme Court for appeal all at once; the appeals court is skipped. This certainly sounds like it would be faster, but let's look at it more closely. It's actually quite rare for an appeals court to dictate a completely new solution; in other words, neither the appeals court nor the Supreme Court is likely to say 'Here's the complete new ruling on the case'. Instead, the appeals court will more often reverse--strike out--particular elements of the lower court's findings, and then send the case back to the lower court. The lower court then re-decides the issue, incorporating those reversals. So in other words, the appeals court won't say "These three conclusions of law are wrong; on that basis, here's the new remedies." It will say "These three conclusions of law are wrong. Now, lower court, go back and re-decide on what the appropriate remedies are."
So the end result of that is: Under the 'expedited' flow of things, both the conclusions of law and the remedies have to be decided at the district court level, before the case is appealed at all. If the Supreme Court agrees wholeheartedly with everything the district court said, that's no problem. But if the Supreme Court decides that even one of the district court's conclusions of law are wrong, and reverses that wrong conclusions, then the district court will probably have to do the 'remedies' phase of the trial all over again, in light of the new conclusions of law. And, of course, once it decides on a new set of remedies, those remedies can be appealed as well. And heaven help us all if the Supremes reverse any of the findings of fact; that would probably throw out not only the remedies, but the conclusions of law as well.
In constrast, in the normal flow of things, the findings of fact and conclusions of law will probably be appealed fully--first to the appeals court, then to the Supreme Court--before the remedies are decided on at all. So the chances are much, much higher than we'll only have to go through the remedies phase once, since those remedies will be based on the final conclusions of law, rather than just the district court's own view of them.
So the 'expedited' path may well not wind up being substantially faster than the standard path after all. And more importantly, what spin will Microsoft be able to place on the expedited process? Don't believe for a moment that the courts are operating wholly in a vacuum on this; there's always public and/or political pressure of one sort or another, especially at the Supreme Court level. And whatever the final solution is, it's almost certain to require various government agencies to implement it; and those government agencies are often governed by politics as well. So public opinion plays a role here.
Everybody who's been watching this case knows what I said in that first paragraph--that the appeals court has been receptive to Microsoft's views on things. So if the DOJ chooses to skip the appeals court and go straight to the Supremes, Microsoft is going to loudly point out everything I just said--that the 'expedited' process isn't likely to be that much faster than the normal process, and may involve quite a bit more wasted effort. So they're going to claim, loudly and repeatedly, that the DOJ isn't doing this out of any desire for efficiency; they're doing this as an excuse to bypass and ignore the views of a court that they know will disagree with them. And that claim is going to strike a chord, because I believe that quite a number of viewers--myself included--are going to conclude that that claim is absolutely right. The DOJ is going to come across looking like an agency that's more interested in twisting the rules for its own benefit than it is in justice--more or less exactly what the DOJ has been claiming about Microsoft. And public opinion, which I think has been shifted the DOJ's way by Judge Jackson's harsh findings of fact, is very likely to shift right back to Microsoft. And I think that shift will have a very real impact on the sort of remedies that are likely to be imposed, and on the degree of vigor with which the government will enforce those remedies.
The government is winning. If they just stay the course, they're likely to get most if not all of what they want. But, just like Microsoft blew their case by coming across as arrogant and manipulative of the rules, it's still not too late for the DOJ to blow it in return.
(Disclaimer: Not a lawyer; not legal advice. Not to be taken internally. May cause drowsiness; alcohol may intensify this effect.)
The SC can also send it back down:
http://www4.law.cornell.edu/uscode/15
(b) Direct appeals to Supreme Court
An appeal from a final judgment pursuant to subsection (a) of this section shall lie directly to the Supreme Court, if, upon application of a party filed within fifteen days of the filing of a notice of appeal, the district judge who adjudicated the case enters an order stating that immediate consideration of the appeal by the Supreme Court is of general public importance in the administration of justice. Such order shall be filed within thirty days after the filing of a notice of appeal. When such an order is filed, the appeal and any cross appeal shall be docketed in the time and manner prescribed by the rules of the Supreme Court. The Supreme Court shall thereupon either
(1) dispose of the appeal and any cross appeal in the same manner as any other direct appeal authorized by law, or
(2) in its discretion, deny the direct appeal and remand the case to the court of appeals, which shall then have jurisdiction to hear and determine the same as if the appeal and any cross appeal therein had been docketed in the court of appeals in the first instance pursuant to subsection (a) of this section.
Frankly I don't think Microsoft has a chance in hell of getting out of this unscathed. To get the finding's of fact overturned would be impossible unless they could somehow proove the judge to be incompetent, which he is not. The findings of fact, even without a ruling in this case are very important when dealing with other cases such as Sun or Corel's lawsuit.
Because Microsoft is now officially a monopoly, they are in serious trouble. Monopolies are completely legal, but if you are one you have to be very careful about how you use your power. Things that an ordinary company can get away with, you cannot get away with if you are a monopoly. Microsoft has built up a very nasty hurdle for themselves and I believe that they will fall.
As for punishment, legal precedent indicates that breaking up a company is the most viable option. Regulation of a company would have to be very well crafted, would be subject to all sorts of potential legal boobytraps, and would generally make far more of a mess than there already is. I expect to see Microsoft divided into several small companies with strong restrictions about what boundaries they are allowed to operate within.
A possible breakup situation:
-Microsoft Consumer OS
-Microsoft Server Technologies (SQL Server, NT/2000, IIS, etc)
-Microsoft Palmtop OS
-Microsoft Data Products (SQL Server)
-Microsoft Business Software (Office, etc)
-Microsoft Consumer Software (a long list...)
-Microsoft Web Technologies (Media Player, IE, etc)
-Microsoft Media (the MS in MSNBC)
-Microsoft Network (although this might be part of the media group considering the ongoing mergers of cable, phone, internet, etc)
-WebTV
If that happens it will be very interesting to see what happens. The consumer version of windows without the lock-in of Internet Explorer has the potential to be rendered irrelevant by the growth of the Internet. Internet Explorer, having to survive on its own without the rest of a big corporation to subsidize it will have to charge money and will lose market share to the open source Mozilla project which should be in good shape by the time the ruling comes down.
The server software will be forced to stand on its own two feet without the windows desktop hooks and Internet Explorer hooks. It will have the advantage of being nicely integrated within itself, but the whole proprietary technology garbage will have to go away to compete against other people's products.
Office will continue to survive because, honestly, it is actually good (if somewhat bloated and security hole ridden) software. It won't have the commitment to Windows anymore, so expect to see releases for Linux, BeOS, and any O/S that can get enough people together to buy it. With any luck, competition from other sources will drive the price down a bit too.
In the end, hopefully Microsoft will finally get a necessity to innovate to go with their freedom to innovate. Expect them to play by the same rules they do now, they'll just have to play seperately.
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Judge Jackson has set a schedule Microsoft must follow:
Dec. 6, 1999 - Justice files conclusions of law brief
Jan. 17, 2000 - Microsoft response due
Jan. 24 - Justice may file reply to Microsoft
Jan. 31 - Final reply from Microsoft due.
The goal is to keep this from becoming another IBM anti-trust case... which went on for over a decade before Reagan just threw the thing out. Hell, in even 5 years operating sytems could be completely different outdated and the case deemed worthless... I think they recognize this.
I am a lawyer, but this is not legal advice. See an attorney in your jurisdiction if you need some.
>The FoF is a lot of high-sounding nonsense, which
>shows little more than "Microsoft has a large and
>stable market share, and works to aggressively >defend that market share from competitors."
Try reading the FofF . . .
It is rather detailed, and does show much more than this. Particularly, it shows ms incurring great costs for the sole purpose of impeding netscape and introductions of applications that would rely on netscape's API rather than windows.
>Despite Judge Jackson's contentions, I see
>nothing immoral or illegal about that.
About what you describe, no. About what microsoft was found to do, and what microsoft's documents showed it to be doing, yes.
>He ignored several viable alternatives(most
>notably Apple)
This just isn't true. Start at page 168 for the discussions dealing with IE and apple.
>and more importantly he completely failed to
>demonstrate harm to consumers.
Again, read the document.
p. 32. , monopoly price of $89 rather than competitive level of $49.
p.59, refusal to deal with IBM--limiting consumer choices.
p.72, blocking distributiona of netscape as a choice.
p.84, overriding consumer's choice of other browser and forcinguse of IE
p. 98, revoking licenses of OEM's for accomodating the choicesdesired by consumers
p. 103, increased support costs by banning shells (leads directly to higher prices).
And the list goes on.
>Yes the FoF is bad for them and they will
>probably lose, but to admit their guilt
>would be big mistake, both legally and morally,
>since they are not guilty.
There is a list of things that monopolists are not allowed to do due to the harm to consumers. I can't think of any of them that weren't found to have happened--documented by ms's memos.
But then, I read the document.
hawk, esq.