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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
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.