Interview: Ask Antitrust Experts About Microsoft

This week, for your questioning pleasure, we have assembled a four-member panel of antitrust experts who are willing to speculate on what might happen to Microsoft next - if anything. But before you start posting questions, please hit some of the links we've provided to several other stories about the potential results of Judge Jackson's Nov. 5 Findings of Fact. (more below)

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.)

Necessary Legal Disclaimer: Although three out of our four panelists are attorneys, all they are providing here is speculation. While our panelists are smart and well-read, no one can predict the future accurately, so you should not base business or personal decisions on their answers to Slashdot readers' questions. For legal or investment advice, please arrange a personal consultation with a qualified professional.

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!

Comments

Open APIs?

[c era]

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?

How can I sue thee, let me count the ways

[Greyfox]

I'm curious about the potential for legal action outside the DOJ's case now that it's been found that Microsoft is in fact a monopoly and has used their position to stamp out competition.

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?

Overturning FoF

[Myddrin]

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?

The "Things Have Changed" Defense

[chromatic]

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!

What about sea changes in the Supreme Court?

[jabbo]

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.

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 /. masses, by the way. Thanks in advance for considering my question.)

Busting up Microsoft

[dieMSdie]

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?

What's up with their defense?

[Otter]

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?

Is a blanket settlement possible?

[Effugas]

(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

Some basic legal questions

[heretic]

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.

Lesser of two Evils

[Hard_Code]

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.

Open source?

[Robotech_Master]

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. :)

Two questions

[bhurt]

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?

The Videotaped demonstration

[JordanH]

In your experience in various courtrooms, did Judge Jackson exercise unusual restraint in not sanctioning or making a finding of contempt for the apparently faked videotaped demonstration?

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?

Intelectual Breakup: Revoke OS Copyright?

[ClarkEvans]

This is the first time where breakup of a monopoly based soley on intellectual property may occur. For monopolies past, breakup involved splitting the properties along physical boundaries. It is clear that the definition of this breakup will be along intellectual boundries instead. However, this leads to one question.

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.

Why does the gov't think they can do anything?

[Ledge Kindred]

Microsoft got into this mess because they ignored the previous ruling against them and the subsequent orders to stop playing nasty. Why does the gov't think they'll have any more luck this time around? Why shouldn't Microsoft simply continue to thumb their collective noses at anyone and everyone that tries to control how they do business and just ignore any orders the gov't might give them? In a worst case situation, what's to stop Microsoft from simply jumping across the border and moving HQ to Vancouver where presumably they would be out of reach of U.S. antitrust laws? In other words, what can the gov't really do to Microsoft to make sure that whatever they get pasted with this time will stick?

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