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Interview: Ask Antitrust Experts About Microsoft
First, let's introduce our guests:
Don Weightman was the gentleman who did our Instant Legal Analysis immediately after the Findings of Fact announcement. We had many requests for him as an interview guest. So here he is.
Richard Hawkins engaged in the general practice of law for five years prior to obtaining his Ph.D. in Economics and Statistics. He is currently a visiting assistant professor of economics at the University of Northern Iowa, and practices only in antitrust and other economic issues in the law. His past includes both hardware and software development, including the mail-merge patch for LyX.
John Lederer is a retired lawyer in Oregon, Wisconsin. He is currently active in technology and intellectual property issues. He practiced in the antitrust and transportation areas and argued three U.S., Supreme Court cases.
David Niemi is a system engineer with a background in economics as well as software. He has been administering and developing for UNIX and Linux since 1987, and has been following Microsoft's antitrust adventures closely since 1993.
Next, a few selected stories about the Microsoft Saga that you may not have read:
- Findings of Fact, A Two-Themed Opus (from The Linux Show.)
- Jerry's Take On The Microsoft Decision: Wrong! (Jerry Pournelle in Byte.)
- Microsoft willing to settle antitrust case (from the Boston Globe.)
- Now bust Microsoft's trust (from The Economist.)
- Militant Microsofties Bunker mentality... (from SF Gate.)
- Don't You Sass Me, Mr. Micro-Smartypants! is a humor piece we couldn't resist including that talks about how things might go if Judge Judy was in charge of the Microsoft trial. It's from - believe it or not - The New York Times. (Free registration required to read.)
Now Let's Get Down to Business
As usual, moderators will select the most interesting questions, and Tuesday afternoon Slashdot editors will do the final "cut" and forward 10 - 15 chosen questions to the panelists - who are all Slashdot readers, just so you know. Answers will appear Friday. So ask away!
What do you think are the chances of forcing MS to make their APIs open source? Would this be continuous (such as a gnu license), or a one-time release? I would also like to know if there is any president to such a ruling?
From what I've heard most people surmise that it would end up being a Good Thing for Bill Gates if MS were broken up along product lines as he would then own stock in half a dozen or more highly succesfull, smaller companies.
In light of this what is your opinion of what a proper punishment should be assuming that punishment is warranted?
Kintanon
Check out JoshJitsu.info for Brazilian Ji
If I spent my time and money to become certified in a product competing with Microsoft (Say, A Novell or OS/2 Certified Engineer) and that product was subsequently stomped into the ground by Microsoft, could I justifiably sue Microsoft for making that investment of time and money worthless?
On a slightly related note, if I owned stock in one of their competitors who was eliminated through their dirty tricks, could I sue them for that?
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Specifically, is overturning a Judge's finding of fact a faux paus among judges? Is it the kind of thing that would make a Judge resign?
I ask because some of the antics MS pulled seem a lot like the antics of the Chicago 7 trial -- where they just kept pissing off the judge. In the Chicago 7 trial, all the Judge's contempt rulings were overturned by the Supreme Court b/c he didn't site them for contempt immediately, and Judge Hoffman resigned.
Do you think Microsoft might be deliberately trying to provoke the same kind of actions?
I guess that's actually three questions...
Eviscerati.Org: All Hail the Eviscerati
In your opinion what are the chances of succesful Class Action suites against Microsoft regardless of the outcome of the trial or the DoJs actions?
Kintanon
Check out JoshJitsu.info for Brazilian Ji
If Microsoft were to be punished with a fine, it would have to be spectacularly huge in order to make any significant difference. For example, it's been said that MS could easily pay off a $100 million fine without problems. The question is, would the American public (who are generally ingorant of just how much money MS has) stand for a bigger fine, or would they see it as an attack on a legitamate business?
"The invisible and the non-existent look very much alike." -- Delos B. McKown
I've read in many places that the FoF is hard to overturn. Reading the FoF it seems to me that if you accept it as fact, then you have to conclude that MS broke the law and should be punished (harshly).
Assuming the FoF is unappealable then, where is the opening for Microsoft to appeal the discision? I.E. Assuming the FoF is untouchable how could MS "win on appeal" as we keep hearing from various tech analysts?
Myddrin
From a legal standpoint, can Microsoft point to such developments as the Sun/AOL/Netscape deal and the mainstream attention devoted to Linux and the BSDs and say, "Things move too fast and we're struggling to catch up" and avoid or beg down punishment?
Contrariwise, is the case focused only on what Microsoft has done in the past? Even if the company has broken the law, if it falls apart tomorrow, will it still be held responsible for its actions?
--
QDMerge 0.4!
how to invest, a novice's guide
The FoF points out a multitude of nasty things MS has done over the years. However it struck me that only about a third of them seemed to be truly anti-trust issues (ie. unfairly leveraging their monopoly to take over competition in other venues). Which of the Judge's facts do you think will actually be deemed illegal, and which are just run-of-the-mill business nastiness?
[TMB]
Reading the findings points to a few likely outcomes if the government pursues an anti-trust case against Microsoft, at least to me. How realistic are they?
1. Separate Microsoft Internet Explorer from the Windows operating system.
2. Compensate Netscape Communications for damages up to $100M.
3. Remove browser restrictions from any contractual agreements with other companies, including IAPs and companies such as Apple.
I do not see anything in the findings that would give the government the justification to break Microsoft into multiple companies.
I do not see anything in the findings that would give sufficient justification to pursue action against Microsoft as regards Java.
Is this reasonable? Must an anti-trust case against Microsoft be based strictly on the findings report?
Graham
Graham
Linux - Fast Pane Relief
On the other hand, what about other alternatives? I've been a big fan of the following as a partial remedy: force Microsoft to fully and completely document each and every API call in Windows, and thoroughly audit them every few months to ensure they're playing by the rules. This would go a long way toward leveling the playing field (though it would not solve every problem, admittedly.) There's really not even a reason the general public *needs* to see the actual source code as long as the interfaces to the system are all out in the open.
What do you all think would be a good remedy, assuming Microsoft does indeed lose?
- A.P.
--
"One World, one Web, one Program" - Microsoft promotional ad
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
We keep hearing how Microsoft has been a big part of the current economic boom and how breaking up Microsoft would be a blow to the U.S. economy. My question is, how much do you think this will affect the judge's decision? If he finds they did break the law, would he let them off with a slap on the wrist in order to protect the economy? If it goes to the Supreme Court, how would they take the economy into account?
human://billy.j.mabray/
"Every good system has a backup." -- Dale Hanchey
Is it a viable long-term alternative? AT&T could be reasonably broken up thusly because individual Baby Bells were regionally separated, but wouldn't the Baby Bills rather rapidly squeeze each other out of the market -- or is there some legal way of ensuring that Baby Bills remain mutually competitive, rather than having one of them emerge as the Big Bill?
--
--
Victor Danilchenko
Let's say that George W. Bush gets elected, and as I have been told he is wont to do, embraces a laissez-faire, hands-off style of conservatism which places a more conservative judge on the Supreme Court (assuming one or more of the present justices were to die or step down). Let's assume further that these judges feel that Microsoft has done nothing so wrong as to merit real punitive action.
/. masses, by the way. Thanks in advance for considering my question.)
What is to stop such a bench from favoring Microsoft and their beyond-hardball tactics? Are Judge Jackson's Findings of Fact so unassailable that, by the rules of the game (as it were), their content cannot be ignored or overruled even by a higher court? (from the paucity of cases that I have read in classes, it seems that the Supreme Court justices can do just about anything short of striking down an existing law) Moreover, if justice is actually meted out, is it possible for Microsoft to simply buy enough senators/congressmen that new laws protecting their investments in the role of Digital Media Broker To The World will favor MS or the Baby Bills?
In short, "Can this finding be made to stick, even with all of Microsoft's money aligned against it, and even in light of a potentially conservative government coming to the fore? If so, why?"
(I'm thrilled that a group of high-powered antitrust lawyers can find the time to read questions from the unwashed
Remember that what's inside of you doesn't matter because nobody can see it.
Many people seem to be considering the breakup of Microsoft into 2 or more separate companies as the most likely outcome of all this. However, would that really do us any good? Let's say you broke them up into an OS division and an APPS division. What is to stop the OS folks from sharing their secret API's with the APPS company? Would we not just be right back where we are now? What would all of you recommend as a solution that would allow MS to survive, but not as a predator that destroys all competition and stifles true innovation?
Don't throw your computer out the window, throw the Windows out of your computer!
In reading Judge Jackson's Findings of Fact, it appears that he is repeating a lot of his arguments from the earlier consent decree case regarding the tying of Internet Explorer. That opinion was rejected by the 2nd Circuit Court of Appeals, in a decision marked by particularly blunt language about the advisability of judges ruling on new product features.
There has been discussion (on MSNBC, the AP, and the NY Times) observing that if Microsoft appeals, the Dept. of Justice can move to have the appeal heard directly by the Supreme Court--avoiding review (and the consequent delay) by the Second Circuit. There has also been a suggestion floated around that the Second Circuit in general views Judge Jackson as "a lightweight" and "stupid"--hinting that if the Second Circuit gets this case they may well spank Judge Jackson again.
Can you elucidate on this? Would the Dept. of Justice try to avoid review by the Second Circuit? Would the Supremes accept the case? Would they send it back to Jackson, or could they send it to the Second Circuit?
And on top of that, based on your experience, could you provide some handicapping of the likely sympathies of the players?
(Thanks for agreeing to the interview. Given that the last interviewee still has smouldering tailfeathers, I think you're all pretty brave to do this. [smile])
Since there is a good chance that this will hit the Supreme Court before all is done, what is the current attitude of the sitting court in regards to anti-trust cases?
Also, what are the chances that this will get some sort of fast track to the Supreme Court? Is a ten year set of appeals inevitable, or could we conceivably be done in a year?
The cake is a pie
Would breaking up MS into OS company, application company, and Internet company, do the trick? Even if OS MS is prevented from competing in the application market, one of the main strengths of MS Office is its use of undocumented Windows APIs. Both App-MS and OS-MS would still benefit from MS Office continuing this practice, so can the breakup along departmental lines be actually a solution to the MS monopoly?
--
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Victor Danilchenko
Since the first ruling has come out, some in the press have been saying that findings of fact cannot be appealed. Others say that the findings can be appealed, but that the chances for success in such an appeal are unlikely.
Please set the record straight for us -- can findings of fact be appealed, in general, and what are the criteria for overturning these findings? In the Microsoft case in particular, please speculate for us: is it likely that Microsoft will choose to appeal the findings of fact? If they do appeal, what attack are they likely to pursue, and what do you feel their chances of success are?
--JT
When I re-read this comment, I realized that I was ambiguous in said passage. What I meant was, "the Justices can use as justification for their rulings just about anything, short of arbitrarily flouting an existing, Constitutionally upheld piece of legislature passed by the representatives of the people in good faith and by the correct process". Eg. Potter (?) writing "I don't know what pornography is, but I know it when I see it".
I'm curious whether a majority of the judges could concievably say "I don't know what a leveraged monopoly looks like, but this isn't it. Remanded to the lower court for further consideration."
Remember that what's inside of you doesn't matter because nobody can see it.
In light of the recent DOJ's FoF, what would you advise someone to do if they had invested monies in Microsoft Stock? It sounds like a split would help Bill but what about the rest of the stock holders in general?
I have read a lot about the varying clauses in the antitrust law, like the ability for the DoJ to take the MSFT case right to the Supreme Court and bypass the lower Appelate judges that have been more compassionate towards MSFT's "plight" than have the regular courts.
What do you feel are the chances of something like that happening? Do you think it is likely that the DoJ will allow the case to continue if MSFT attempts to appeal the FoF before the rest of the trial is over? What do you think the impact of the other class action suits arleady being brought against MSFT after the FoF was released is going to have, if any, on the final stages of the case?
This isn't specifically an antitrust matter, but since most of the panelists are lawyers I figured I'd ask it:
One of the most startling things about this trial was how utterly inept Microsoft's defense seemed. Who do you think is at fault there -- Sullivan & Cromwell, MS leadership or both? I find it hard to believe that such a prestigious firm could keep botching things so badly, especially when the media were full of stories ridiculing them. My guess is that MS wanted the defense to go a certain way (give no ground on any front) and the lawyers felt obliged to go along. What do you think?
What I'm listening to now on Pandora...
Personally, I think this trial couldn't have happened to a more deserving company.
But it also has given me pause to think on a thing or two.
1. Could this open up Microsoft to not only class action lawsuits but other lawsuits from companies claiming that the monopoly has damaged them so that it need compensation to recup the damages it has suffered. If so.. and these lawsuits become rampant, could we possibly see Microsoft file for reorganization? With MS stock now being part of the Dow Jones.. how would that effect our economy, in a time where the slighest rumor of interest rate hikes send investors in to a frenzy?
2. Could we be seeing the end of MS as the "Big Blue" of the 90's possibly passing the torch to AOL? If so, could this set precedent that AOL might be accused of having an unfair monopoly with it's aquisition of COmpuserve, and basically squashing the other ISP (should it ever come to that?).
GIHM -The light at the end of the tunnel is only the oncoming train.
(eg: Financial impacts in their local areas, if Microsoft were de-throned, or any political cries from the Senate or House of Representitives)
In short, is there a whelk's chance in a supernova of there being a neutral, unbiased appeal, or are we in for a kangaroo court, one way or the other?
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
(My question is in boldface, at the end of this post. You may ignore my observations if you like.)
Ever since the Finding of Fact was released, I've been thinking about this one scene from a story I read a couple years ago. The lead vampire, strongest and most vicious creature in the land, is finally defeated when the hordes of zombies he created are turned against him. He easily fights off the first few, but they keep coming, wave after wave, a nick here, a scratch there, until he is finally torn asunder.
Take one incredibly deep pocketed corporation. Add in thousands of unprofitable Internet companies, all with venture capitalists screaming for some way to get their money back. Now toss in a tremendous number of lawyers, each desperate to feed at the Trough of Infinite Wealth, and you have a potential legal evisceration of one of the country's most powerful companies.
I may be a Linux supporter, but I try to be consistent. Abuse and overuse of the legal system genuinely isn't all that productive, and is often used to replace that oft-repeated concept of "Innovation". (Witness Unisys's exploitation of GIF without a single byte of optimized GIF generation code coming out of them, and other entirely corrupt abuses of the USPTO.)
I want to see something done to check the abuses of Microsoft, but I don't want to see the company converted into a liquidation sale for hungry lawyers and startups that (sadly) didn't have much of a working business plan in the first place. Thus my question:
Is it a) Legally possible and b) Remotely conceivable that Microsoft and the U.S. Government will come to a settlement that will insulate Microsoft from any and all lawsuits based upon their abuses over the last ten years?
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
What is the legal importance of the Findings of Fact for other current or new lawsuits against Microsoft? Does the FoF lower the bar of evidence that a plaintif would have to demonstrate in a damages or illegal practices claim? If so, is this limited only to the companies named in the FoF (Caldera, Sun, IBM, Netscape), or would other companies also be able to find some support in the FoF? Does this open Microsoft to increased legal risks?
If not -- why don't the "facts" found in the FoF apply to other cases.
Related question (also asked elsewhere), what is the appealability of the FoF as compared with any remedies or damages which might be levied against Microsoft?
What part of "gestalt" don't you understand?
My understanding is that will next be a verdict followed by the remedy phase.
What are the applicable statutes that apply to Microsoft's behavior? Is it limited to the Sherman Act and the Consent Decree, or is there a boatload of other law that has to be taken into account?
Regarding the remedy phase, I presume that that the DOJ and the state attorneys general will have some recommmendations. Is the judge limited to the scope of these recommendations, or is he free to devise whatever remedy he sees fit? If the judge does have a free hand, what are the limitations to his remedies?
Thanks.
I see Microsofts transgresses as a /behavioral/ problem. Many proposed solutions, such as opening their source, or breaking MS into smaller MSs, do not address this central problem, and thus will not be successful strategies. Are there any legal mechanisms by which Microsoft can be restrained from /behaving/ in the detrimental way it has in the past (coercing OEMs, making exclusionary pacts, "blackmailing" other companies, embracing-extending-extinguishing technologies), but at the same time not hamper its, and its competitors', ability to innovate and compete in the computer industry? It seems to me, we have to pick the lesser of the two evils of Microsoft's bad behavior and (possibly misguided) government intervention.
It's 10 PM. Do you know if you're un-American?
I've seen mentioned in several different places now a special law that allows government anti-trust prosecuters to fast-track appealed decisions to the Supreme Court. One of the things that is mentioned is that, if this were to happen, it would likely be determined that the state's portion of the case could not follow it.
Should the appeals process be split like this (seperating the states from the DOJ), what happens? If the two appeals trials become seperate entities, what happens if there are mixed decisions? (one upholding the ruling, one opposing)
Judge Jackson's FOF singled out Bill Gates in several places as the instigator of Microsoft's monopolistic actions. Some have seen this as suggesting that Gates may suffer some of the penalties from this suit.
My understanding is that as an officer of a corporation, Gates is shielded from any liability in any suit of law against MS. Is my understanding correct? Could Gates be held liable & punished with fines, or being forced to divest his MS stock holdings -- or similar penalties?
Could another lawsuit use this FOF & put Gates at risk for penalties?
(Sorry if the above sounds convoluted when the title basically says it all.)
Geoff
I think I see a trend here. Maybe for them it really would be easier to muzzle the entire internet than to produce p
If the decision is to the detriment of MS, what do you think about the possibility that they'd move to another country with laxer anti-trust laws?
-Yarn - Rio Karma: Excellent
The original Anti Trust Acts were developed to protect small farmers and businesses from predatory actions by trusts--Standard Oil regulating who got railroad tank cars, for instance, so small oil producers couldn't compete.
Can Microsoft argue that Judge Jackson is misapplying the law? Jerry Pournelle cogently points out that Microsoft's presence in any market category has consistently driven prices lower. He particularly points out that Microsoft has been remarkably aggressive in providing tools and support to developers--handing out developer tools for free to anybody who even looked like a programmer.
Microsoft has spent zillions of dollars providing tools and support to tens of thousands of small businesses through their ISV and Microsoft Certified Solution Provider program. Other vendors that have emulated those programs don't provide nearly as much, and charge much, much more for their programs.
Judge Jackson's finding that Microsoft's actions have hurt competition seems to be predicated on the idea that (variously) Apple, IBM, Netscape, and Sun are the competition. But doesn't a small consulting firm (say...mine) that employs a few people and uses Microsoft's tools to compete (successfully, I might add) with IBM, Oracle, and others, better represent the small business that the Anti Trust laws were written to protect?
How many different companies could MS be feasibly broken up into? It looks like the DOJ might be cool with 2 (applications/internet, and Operating systems). Who could lead the companies? Wouldn't MS have to split up the execs? Could Gates or Ballmer be involved in both companies?
How might the break-up of Microsoft (MS) differ from those landmark anti-trust cases with regard to stock? Specifically (and my lack of historical knowledge shows here) what kind of damages were ATT and SO facing? As I understand it, ATT and SO were basically monopolies that prevented entry, but did they bully smaller companies a la MS?
I guess my underlying question is this: given MS' bullying tactics, would a break-up of MS be different from those of ATT and SO because of all the people MS has stepped on along the way who are now looking to loot the MS coffers in compensation for years of abuse? Could this be a critical difference between those earlier decisions and this one, or is this nothing new? ie. were there companies like AOL, Sun, etc. around ready to pounce on ATT or SO when they were ruled against?
Wood Shavings!
- Godai
What are the chances of Microsoft being forced to open the entire source code to Windows, not just its APIs? Some articles I've read/listened to bandied that about as a possible solution.
:)
What sort of software licence would an "opened Windows" be most likely to employ?
What would the short- and long-term effects of such a release be? (Other than a sudden dreadful attrition of open source programmers as about half of those who take a look at the Windows source code die laughing.
Editor Emeritus and Senior Writer, TeleRead.org
1) What are the chances that the Supreme Court will decline to hear the appeal? And what justifications are they likely use should they decline the appeal? I remember hearing that the Supreme Court prefers to only hear cases with constitutional implications- could the Supreme Court refuse the appeal based simply on that (and a full schedule)?
2) What implications would this have on the Caldera/DR-DOS lawsuit against Microsoft?
IANAL, but AFAIK, the proscecution has filed a complaint regarding a specific violation or set of violations. Judge Jackson can only impose a judgement that addresses the violation(s) discussed in this case. For example, since no evidence (presented this time around) alleged how Microsoft might have abused its Windows monopoly to push Office, does that mean Judge Jackson cannot impose a remedy splitting OSs and applications into different companies?
To me, the most significant aspect of the Findings of Fact was Jackson's constant use of the phrase, "application barrier to entry." It seems to me as if the judge is using this concept, rather than the narrow Netscape vs. IE browser war, to broaden the scope of the trial, and thus the remedies open to him.
So, how broad a scope can Judge Jackson's potential remedies address? --PSRC
Stupid job ads, weird spam, occasional insight at
...what settlement would you propose making with the DOJ?
send all spam to theotherwhitemeat@ropine.com
There are a number of clear misrepresentations made in the video, including a Microsoft executive saying "We have not made any other changes to this computer or Windows 98, except to run Dr. Felten's program." Microsoft later admitted that this was not true.
As Judge Jackson did not mention this apparent falsification of evidence in the Finding of Fact, is it unlikely that this incident will be used to prejudge Microsoft in appeals?
The Findings of Fact in the Microsoft case, and the impending decision, have sparked a lot of controversey in the last week. In addition to debate over the correctness of the findings, and the possible outcome, there has been much talk about modern antitrust law and its relation to the "free market" economic model.
While I personally disagree, sites such as microsoft.aynrand.org (among many others) staunchly maintain that the antitrust laws used in the prosecution of Microsoft are in fact inimical to a free market. They argue that Microsoft should be left alone, not because of PR Marketing BS like the "freedom to innovate", but because they feel that market forces should ultimately (and are already starting to) make the final decision.
More specifically, some propose that modern antitrust law has become less appropriate or relevant to the high pace of the technology marketplace, and may be in need of revision to more accurately perform its desired function. Do you feel that antitrust law is still effective in the changing atmosphere of modern business, and if not, what changes do you feel could be made to increase its effectiveness?
Anthony
^X^X
Segmentation fault (core dumped)
"I think any time you expose vulnerabilities it's a good thing." -Attorney General Janet Reno
What are Microsoft's chances if they appeal, especially what are the chances of the Expediting Act to be applied?
--Coke
One of the more drastic remedies suggested on slashdot (compatible with its open source stance) has been to open up the source to Win95 / Win98 / WinNT: this could affect MS revenues drastically. To what extent would this be a deterrent to the courts? Is impact on revenues likely to guide the courts at all?
Mark Murray, Microsoft spokesman, recently gave an interview in which he said that the Findings of Facts "do not have any weight or bearing on any other lawsuit" until the judge issues his final ruling. Is this true? [link to the Mark Murray article]
--Coke
The Microsoft Anti-trust case is different from the Standard Oil and AT&T cases in many important areas.
Most importantly, Standard Oil and AT&T controled virtually the entire infrastructure to their industries, making entry close to impossible. While Microsoft has been proven to misuse its monopoly power... it really controls little infrastructure. The barriers to entry in its business (and businesses) are relatively low compared to those cases (and also compared to other industries of today). The bariers have been in the form of actual "fear" of competing with Microsoft, rather than a real barrier in of itself.
Despite their underhanded tactics we are already starting to see competitors in Microsoft's primary business (in the form of BSD, linux and a few others)... isn't this proof that little action really needs to be taken? Yes, they should be punished for past abuse of monopoly power, but isn't the nature of their business one that allows entrance, competition and the nature of a business cycle at a much higher level then our other anti-trust case, thus making further anti-trust actions unnesecary?
In the past, the assets were exclusive; thus only one group could control each asset after the breakup. Could the non-exclusive nature of information change the method of breakup?
In particular, it has been argued that the public of the united states (and the world at large) has already paid for Windows 98 far more than they would have otherwise; all in told billions of dollars more than they would have. So, due to the non-exclusive nature of the operating system; is putting the operating system code in the public domain a possible solution? After all, it is the abuse of the very intent of copyright law (to promote the arts and sciences by providing, for a limited time, exclusive rights) by interfering with the advancement of the arts and sciences which has been proven. Would it not make sence to simply revoke the copyright? Why or why not.
No, not unless that were to cause a company to develop an OS based on the API that OEM's could use in place of Windows. And the likeliness of a company doing that, according to the FoF is very slim.
You see, even if Netscape had all the API's that they requested, Microsoft would still have been able to tell Compaq that they couldn't license Windows if they bundled Netscape. The case wasn't really about Microsoft having "closed" API's that only they knew about, as much as it was them stifling innovation from other companies by denying licensing or giving "special" deals to those companies that did or didn't do what Microsoft wanted them to do.
-Brent--
The judge has established his version of the facts; but not yet how heavily the seriousness of MS's transgressions weigh against any possible disbenefits of government action.
It seems likely that MS's lawyers would want to argue that, whatever the costs of MS's imperialist behaviour, there are advantages to the Pax Redmondia as a consumer accepted de-facto standard, which would be lost if it were broken up or prevented from further evolving.
Question: Can MS make such a comparison at this level, based on accepting the judges facts but belittling their comparative importance, but still argue against those findings of fact at a higher level on appeal ?
I got a call last night from some guy who asked me if I'd heard of the Microsoft Trial. Not being blind and deaf, I said yes of course. He then asked if I wanted to take a phone survey.
:-)
Normally I say no to this stuff, but my interest got the better of me and I said yes. What followed was one of the most biased surveys I have ever taken.
As I was taking this, it was obvious that the guy was reading questions off a computer screen, and really didn't grasp the nature of many of the questions. Also, there was a lot of noise in the background. LOTS of noise, to the extent that I could tell others were asking the same questions to even more people. It was a large scale survey.
Anyway, first he asked background info. Basically it wanted to know how well you understand computers and technology.
Then it asked about the M$ trial. Do you know about the finding of fact? Do you agree with it? Have you read it? Do you watch the news? Do you read a national newspaper?
Then the Microsoft bias set in.
I heard questions like, "Given that the breakup of Microsoft would hurt the consumer and stifle innovation, do you agree that the government should not pursue the case any further, and do you think that the government should try for a settlement, as Microsoft has been advocating for months? Yes or no please."
I'm not joking. It was just that bad. After each one of the most biased questions, he asked the same question again, "Do you think that Microsoft has hurt the consumer?"
That one was repeated a lot, along with "Do you think the government should settle and not waste taxpayer money," and "Do you think M$ is a monopoly?"
Anyway, I got through the whole thing with my sense of morals pretty much untarnished, even having to say things like "Yes, taxpayer money should be wasted to beat that Bill Gates bastard down," because I simply couldn't cope with some of those questions.
Anyway, I thought this somehow might be relevant to the discussion at hand regarding all the m$ hubbub.
Warning: If M$ comes out with survey results of the American public anytime soon, you now know to take that with a grain of salt, don't ya?
Otto
---
- Give a man a fire and he's warm for a day, but set him on fire and he's warm for the rest of his life.
It would be far more useful, I think, if they would force MS to open their APIs and file formats, so that if they introduce a new file format or API, it should be completely documented. No more of undocumented APIs and no more proprietary file formats. Do that and bar MS from announcing products before the release date (A constraint IBM still labors under) and you'd have removed about 90% of their underhanded moves.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Ok, like it or not people, we don't WANT Win9x/NT/CE or Win32 to be GPL'ed. Why not? Well, we want to see other operating systems have a chance in the marketplace. We want to see Be sell copies because it's a pretty damn cool Posix compliant OS. Ditto to QNX.
So if we GPL the Win32 source code, how can these commercial OS'es implement it without some legal guffaw? The world would be a better place if every x86 OS could run Win32, so lets try to pick a license that lets every OS run it. Instead of leaving out the BSD's and whatever commercial systems as well.
Since it's been found that the deaths of OS/2 and Novell most likely were anything but natural. Murder most foul, in fact. Given that both products were superior to anything Microsoft was putting out, there was no reason to believe they wouldn't take enough of a chunk out of the market for a fellow to make a living. Probably would have too, had Microsoft not killed them in the prime of their lives.
Of course it's mostly hypothetical for me, since I'm a UNIX programmer and despise OS/2 almost as much as I despise Windows. My certification in OS/2 I got for free one year at COMDEX for the effort of taking a short test on the subject. But I know quite a few certified developers who might be interested in the answer to this question.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Is there really a case (rather, an appeal-proof case) for anything more radical ?
Vovida, OS VoIP
Beer recipe: free! #Source
Cold pints: $2 #Product
Assume that MS gets diced into (my own favorite) three planks plus sawdust: Consumer OS (W98), business/server OS (WNT), and productivity apps (Office). Divest MSN, games, keyboards, etc.
Then along come at least 19 class-action suits plus the OEMs. I'm assuming that IBM and HP still have time to file, since they seem to have plenty of cause.
Which pieces of MS get nailed with the residual liability of their monolythic ancestor? In other words, who's left to sue? I don't for a minute believe that the USSC would allow a conclusion forclosing IBM's pursuit of redress, especially since the harm to them wasn't at issue in the trial, but would there be some sort of shared membership in a liability pool or what?
Lacking <sarcasm> tags,
Seriously. Perhaps M$ knew they'd lose on facts, and wanted to get the judge so pissed off that he would make bench rulings that would be the basis for an appeal.
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Infuriate left and right
Criminal cases seem to have the goal of punishment; civil cases seem to have the goal of fixing things, although there are also punitive damages. It is not clear to me if this is a civil or criminal case. One common theme is that if M$ drags this out long enough, they can point to all the changes in the industry since the charges were first brought and say that the FoF and everything following is obsolete. That implies this case is only looking for remedies, not punishment. Could you say a bit about punishment vs remedies in anti-trust cases in general, this case in particular, and possibly a bit on the Caldera case? It doesn't seem right to a lot of us that M$ and especially Bill Gates should be rewarded with dismissal of all charges because they further abused the system by dragging the case out so long.
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Infuriate left and right
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My mom's going to kick you in the face!
We've seen some pretty dramatic disparity between Microsoft's evidence and the governments's evidence. Especially, we've seen the video taped examination of Bill Gates where he answers many direct questions in ways that other evidence seems to contradict. As a result, the judge's findings of fact seems to me to make a number of Microsoft witnesses out to be liars. My question: why don't we hear the word perjury mentioned by those who understand these things? Has it gotten to the point where lying in court is just accepted as part of the game?
Life's a bitch but somebody's gotta do it.
Which of the several anti-trust precedents are the closest to US vs. MS? What was the remedy in that case?
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
Apologies: my connection cut off while the last version was being posted. Here is the correctly formatted version.
(1) It seems that the DOJ missed the worst injury MS has caused. Namely, they caused an informational injury in the industry like those recently recognized by the Supreme Court in Kodak v. ITS (1992).
This comes from one thing they did that every user noticed a few years ago: the intentional incompatibility of their API's for external newtork software with MS's internal software, or, in english, tweaking the winsock.dll and friends so Netscape and AOL would crash.
The fact that such suspicious incompatibilities have absolutely no consumer benefit, can only harm competition, and only serve to preserve MS's monopoly OS position and create MS's IE market power seemed very strong evidence. Such conduct was the most flagrant (and traditional) antitrust act MS committed, yet I'm curious why it was never put forward. Was the difficulty proving MS's intent? But isn't MS's behavior suspicious given their hesitancy to give DOJ access to any of their code?
(2) Reading through the Findings of Fact, Judge Jackson makes a number of conclusions about MS's use of monopoly power to leverage other players and other horizontal (other OS's) and vertical (Apps and Hardware manufacturers) markets. Specifically, the potential agreement to split the browser market w/ Netscape on OS lines appears to be a prima facie illegal market division. Is this the strongest theory for an actual finding of an antitrust violation?
(3) MS's refusal to deal problems with Apple and other Hardware manufacturers over exclusive licensing agreements are bad; but, isn't this seems to be a weaker antitrust argument? Namely, it's not at all clear from the legal perspective (although it's pretty clear from a common sense perspective) that MS's market power was proven to extend to hardware dealers. For instance, are the favorable terms to exclusive licensees of Microsoft, while locking out, say OS/2 in the early 90's, enough to constitute an antitrust act on MS's part?
(4)In light of Judge Jacksons Findings of Fact about the merging of IE and Win98, is this sufficient to overcome the DC Circuit's novel test it set down a year and a half ago on browser integration? While Judge Jackson's conclusion that there was no consumer benefit from the integration is strong enough that the DC Circuit can't likely overturn it on a clearly erroneous standard, can they say his findings applied the wrong legal standard?
In other words, the DC Circuit said explicitly MS had shown a minimum showing of technological benefit from integration that, at least, it did not violate the consent decree and probably didn't violate the antitrust laws, if I'm reading it correctly. Judge Jackson then concluded there was no consumer benefit and the integration was solely for anticompetitive purposes. Does Judge Jackson's Finding of Fact thus legally conflict with the DC Circuit's prior conclusions?
(5) Lastly, the Supreme Court has been all but consistent on antitrust in the last few years. It doesn't seem like the DC Circuit test is in line with recent SC decisions, do you think the test will die on appeal?
I think the DC Circuit seemed to misinterpret Kodak v. ITS and other cases. In the end, do you think this case will come down to the legal issue of how consumer harm is to be defined in tech cases, and how antitrust injury is defined in tech competitors?
I mean these as seeds for discussion, answer what you feel is most interesting, or none at all. People don't seem to realize the conservative interpretation antitrust laws are given nowadays, so I'm asking these to find out which theories MS is most likely liable under.
Many commentators have remarked that the tone of Judge Jackson's findings was unusually harsh, especially the last few paragraphs. Since you have more experience with anti-trust court rulings, can you confirm that the judge's tone was out of the ordinary? If so, what does it signify?
Always keep a sapphire in your mind
The IBM PC Company (An internal division of IBM -- for those of you who don't know IBM, internally it is a many headed hydra and often the one head is at odds with another) could have stood up to Microsoft and offered PC's with OS/2, but they were already taking a beating from the cut-rate upstarts Gateway and Dell. In that market, every penny you can cut off the price of your system is vitally important.
In the 3.1 days, OS/2 was certainly a superior OS to DOS/Windows, if only to preemptively multitask DOS and Windows apps. In 95/98 days, Microsoft has almost caught up in terms of look and feel despite the fact that under the hood is still Pure Evil(tm). IBM pretty much threw in the towel and in two or three releases Windows will catch up to where OS/2 is today (From a design standpoint.) Of course, it'll require a Pentium VI and 512MB of RAM to run, but such is the price of progress.
Novell's story is slightly different, but Caldera's going to court to argue that Microsoft did, in fact, kill DR DOS (Which was, if I recall correctly, originally Novell's product.) I suspect the FOF will make it much easier for them to get a victory.
In the interest of full disclosure, I've been a contractor at IBM on and off since 1992. I was a very strong OS/2 advocate and a member of Team OS/2. I promoted the operating system on my own time at numerous trade shows. I often told the other team members that if something better came along, I'd jump ship in a heartbeat and they may have thought I was joking. I'm a Linux user and advocate now, and if something better comes along I'll jump ship in a heartbeat.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Given that the practices going on during the trial were equivalent to obstruction of justice, what is the best case that you could make to argue that Bill Gates, who with Steve Ballmer sets the tone for Microsoft behavior, should be charged with obstruction of justice, conspiracy to obstruct justice, and should at the least be forbidden from running _any_ 'baby Microsofts' and at most locked up for a good long time? This assumes that Gates' personality and those of his top henchment sets the tone for not only Microsoft, but for the industry as a whole (which I think is a reasonable statement), and that the chilling effect on innovation and the choking of normal functioning of the industry can be in part attributed to the personality everyone is now worshipping and trying to emulate. Given that the result of this is wrong and unhealthy, why is there so rarely the view that 'Gee, businesswise this guy is a sociopath, mugger and a criminal', why is there so little interest in _removing_ him from any position of power running companies, and what would be a good way to argue this point? Personally, I would say the _greatest_ harm from the monopoly is the brainwashing of the entire world to believe that Bill Gates is someone to be emulated and rewarded, rather than the unprincipled business equivalent of a Mafia chieftain, someone who should be locked up, not lionized. That's _personally_, again: I think the man is _personally_ a sociopath and should not be allowed to run businesses, much less given control of one of the baby-MSes of a breakup. So, how do you make that stick?
pen wrote:
> Now, the question: Which do you think is more likely, Microsoft settling or appealing?
And in addition to that, which do you think would be more beneficial, both in the legal sense and for the consumer -- a settlement or an appeal?
If Microsoft decides to settle, to make the best of a bad situation and avoid dragging the case out, they would have more control over the punitive damages applied. However, if they think that they have a chance of the FoF being overturned (which relates to questions elsewhere in the thread as to the likeliness/legality of such), they might choose to gamble it all, and risk heavier damages in exchange for the chance of a clear victory.
Which do you think would be the better of the two?
If you were a lawyer for Microsoft, what would you advise them to do?
The cake is a pie
You write: I'm thrilled that a group of high-powered antitrust lawyers can find the time to read questions from the unwashed /. masses, by the way.
High-powered antitrust lawyers and unwashed masses? You're talking about the power politics of an earlier age. It's the techies that rule the new world, and most others just don't understand it and are running hard to try to catch up. Stop watching the telly where the old systems are still portrayed as alive and well despite their waning power. Of course they still have power over the nationally-located physicals, but that's becoming less relevant by the minute.
Lawyers and the judiciary are in a particularly difficult position, because whatever country they currently practice in, they're outside of their jurisdiction when it comes to the net.
I'm sure that they're ecstatic though that people like yourself still postrate themselves before the old high priests. It makes their uphill struggle in a new environment much easier.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
If Microsoft defeat (or come to an agreement) with the antitrust trial, can the facts, and details that cam out in this trial be used for other litigation?
Microsoft is a multinational firm - how would the americans anti-trust trial affect other companies. Would Microsoft be allowed to split these off as another independant company, leaving only Microsoft-USA to be broken up, while they continue to dominate markets?