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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?
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
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]
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?"
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!
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
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...
(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
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)
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 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
.. and another thing which might be interesting if MS is broken up is the concentration of ownership of MS in relatively few hands. Unlike AT&T, which I believe was the most widely held stock on the NYSE, with no dominant shareholders at the time of the breakup, MS, while still widely held (in comparison with other/smaller tech companies), still has shareholders, such as Bill himself, with huge positions.
If MS were to be broken up, what's to prevent current large MS shareholders, like Bill and Steve Ballmer, etc., from maintaining control of the boards of the Baby Bills, and thereby maintaining the status quo by having the spinoffs collude? Forced divesiture? Does the Sherman act provide for this?
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
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?
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.
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.
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?
-=-=-=-=-
-=-=-=-=-
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.