Posted by
ryuzaki0
on from the let's-all-hold-hands-and-smile dept.
fremen writes "CNN is reporting that Judge Thomas Penfield Jackson has appointed a mediator in the Microsoft case. The mediator is Richard Posner, chief Judge of the 7th Circuit U.S. Court of Appeals. Yahoo has a similar story indicating that he'll be acting in a 'private capacity.'"
This is the case of importance in technology today, or at least it appears to be. (I suspect that open access to broadband networks will be the decision that matters in the long run). It is facinating because nearly everyone (except Tom Christiansen apparently) uses or has used MS software and everyone (including Tom) has an opinion about it.
Most people on/. have a negative opinion of the quality of MS software, but even more than that, most people don't like the heavy-handedness with which they have to gained and retained market-share. This feeling has been intensified since MS has taken aim at such sacred cows as Linux and open source software. Many of these same people are also wary of the power of government and don't believe that legal solutions to technical problems lead to salutory results. So here we are faced with a legal process that vindicates the./ opinion of MS and has the potential to change the competitive landscape of software. Yet there is the nagging suspicion that the government will get it wrong and agree to a settlement/remedy that is too strong, too weak, or has too many negative side effects. Of course we're interested. --
It is fascinating because nearly everyone (except Tom Christiansen apparently) uses or has used MS software and everyone (including Tom) has an opinion about it.
My goodness! Has it really gotten that bad?
[pause for brief spotchecks with hitherto untainted colleagues in the programming field]
Nope, it's not just me. Whew. You had me scared for a minute.
The Evil Empire does not make software for me, nor for the likes of me. As they have nothing for me, and I want nothing from them, this makes my untarnished condition remarkably simple. And pleasant.
When people hear that a person, even a programmer of all people, can not only live but flourish and prosper and take daily pleasures in the joys of programming in a pristine world where the creeping shadow out of Redmond holds no power, they always remark longingly, "Boy, you sure are lucky." Perhaps, but I don't think of it that way. Luck is an accident. This is no accident.
You make your own heaven, your own hell. It's true that you can never return to a state of MS-virginity any more than can a heroin addict return to that unblemished state of never having shot up, but he doesn't have to keep doing it, either. You can establish your own sanctuary, a Microsoft-free zone. I'm told that I emanate such a field (7th Level Unix Wizard Spell: Protection from Microsoft, 10-yard radius). This is because people's MS-crudola always likes to blow up when I'm around. Then again, my bets are it would have blown up if I hadn't been there, too.:-)
You see, maintaining a certain, well, "purity of spirit" if you would, is really not so much a matter of luck, as it is one of will.
Yes, brother, you too can "Just say no" to the Bill! The first step to recovery is to admit your addiction.:-) Become the master of your own destiny. Know what you want, and live life on your own terms. You'll be a lot happier.
Maybe I lead an uncommon life. I don't know. I don't have television either, although my opposition there is significantly less vociferous. Heck, I just got back from a movie (at the cinema). But I can no more see myself turning to the Dark Side--or even being forcibly coerced into it by an imminently ex employer--than do I see myself becoming a TV ad shyster hawking hamburgers from MacDonalds (those who know me will know how truly impossible that would be).
The deal is this: if MS are sane, then they will settle. However, it's not a foregone conclusion that MS _are_ sane: some of their behavior in the case seemed delusional, and apparently the company is now fighting desperately to keep its own employees from 'losing faith' and believing in things like the findings of fact. I'd say there was a very good chance that the Microsoft side will go down fighting, simply because they are quite seriously insane when compared to the standard of sanity set by judges and juries and normal people. In this sense they don't know what's good for them because they will not entertain the idea that they might have done anything wrong: when the leadership of a company is that strong and that determined to stick with a course of action, they may decide that no judge is qualified to pass judgement on them. They're being asked to accept as fact that they've done many harmful things, and it may be a lot to ask to expect these people to admit they've done wrong. Don't always assume the MS leadership are perfectly sane rationalists. They are considerably more passionate and fanatical than that.
George Washington University Law Professor Bill Kovacic gave some analysis of the referral on NPR's All Things Considered. The Real Audio file is here. --
--
"L'IT c'est moi!"
Posner is perfect for a mediation
by
werdna
·
· Score: 3
To understand why, one must understand the purpose of a mediation. In a mediation, the mediator serves as a facilitator to help the parties to find a settlement when, in fact, they each have minimum positions with which the other party can live. Very often, two adversarial parties are unable to break the rhythm of posturing and stating their strongest views, making it impossible to narrow the gap.
A mediator typically takes each party aside, points out civilly what of their posturing is bullshit, reminds them civilly of the risks of proceeding and asks them confidentially to disclose their best position (to the extent they feel comfortable doing so). A really good mediator can help the parties to feel comfortable reducing their posturing so they can get down to real-life horsetrading and settle the damn dispute.
Judge Posner's views and politics are decidedly pro-Microsoft in these facts. Judge Posner would probably argue that there is no such thing as a real "barrier to entry," the very fulcrum of Judge Jackson's FOF. But so what? This is precisely why he is the perfect choice.
Judge Posner's views, whatever you may think of them, do not diminish his stature. He is the lion of antitrust law and jurisprudence (particularly given that Judge Bork has hung up his robes). He is also brilliant (though I don't agree with a great deal of his writings or analyis), and a remarkably fast and analytical thinker.
In short, no one is going to bullshit him. He will have comebacks, regardless of who is trying to stake out their position. And the setting aside of bullshit is the fuel of mediation. Posner can deflate the theory of the government's position, when in caucus with the government, and he can destroy Microsoft's confidence in its position when in caucus with Microsoft. Why but Posner could really accomplish this in view of these findings of facts?
The purpose of mediation is to achieve a settlement when it is possible (typically one with both parties holding their stomachs as they sign), or to declare an impasse with as little pain as possible.
True, Posner gives Microsoft a sense of an "edge" going in. How do you think the government feels about the findings of facts? A "settlement session" where the government dictates terms may be satisfying for the egos of the government, but it will not achieve a settlement. Posner can balance things for the purposes of mediation, so that the horsetrading can happen -- if it can happen at all.
Both sides are afraid of court imposed remedies
by
vlax
·
· Score: 3
I'm not a fan of the Chicago school of economics (after Milton Friedman helped the Chilean dictatorship screw its workers I'm certainly not a fan of its biggest proponents), but Posner is definitely the most qualified person Judge Jackson could have chosen.
Posner is most likely to understand what is in the findings of fact and knows that a slap-on-the-hands consent order is not going to be good enough, regardless of his ideology. Because he is well-known as a conservative judge, the libertarian fringe in the business community is unlikely to be able to claim big government is unjustly interfering with Microsoft.
This guy has it together enough to help punish Microsoft, and has a reputation that makes him unimpeachable if and when he does. This is one of those "only Nixon could have gone to China" cases where, despite being an unrepentant liberal and a soft Keynesian, I agree that the conservative is the right choice.
Microsoft has to be scared. They have no way of knowing what kind of punishment the court will mete out. The Justice Department has the same problem, but has political problems on top of that - 2000 is an election year and no one wants to make potential big business campaign contributors unhappy. Both have a vested interest in negociating something. In arbitration, they have some control over the outcome - in a court, no one knows.
Of course, both sides are still far apart on what ought to be done. Microsoft is adamant that they should be able to put anything they want in Windows, and that they won't permit disclosure of the source in any way. It's hard to see what the DOJ could ask for outside of such solutions, except perhaps actually breaking up the company.
I agree with Dr Hawkins below - the odds of settlement have improved. How much depends on how scared Microsoft is. The DOJ can't back down now - if there is no settlement, they will let the cards fall where they may. Any politician who is going to be hosed by the Microsoft case already has been.
First step towards settlement
by
alexhmit01
·
· Score: 3
This is merely an attempt to reach a settlement. Microsoft is clearly in trouble because of the FoF, and they don't want to have court imposed sanctions. It would likely be appealed straight to the Supreme Court, which would probably not overturn the decision unless the Judge ruled something REALLY inane.
Mediation can keep the parties in perspective during negotiations. The Judge is serving in `private capacity' but I don't know what that means. I'm assuming that his time is paid by the parties involved, but who really knows.
I understand that after the case is closed, the FoF is considered admissable evidence in all the private anti-trust cases. If Microsoft settles, is the FoF still binding, or does the case disappear? I'm guessing the latter, which is why MS is looking to settle instead of fight. Even if the appeal wins them points from the Conclusions of Law (unlikely), they will most likely be economically ruining by the private civil anti-trust cases. Don't think so? I think that they can get up to triple damages... want to see what a few billion in legal costs do to Microsoft's cash flow? Realize that market capitalization isn't cash onhand, merely their valuations. A hit of $10-15 billion in cash would devastate Microsoft... and that would be on top of a massive penalty for the anti-trust stuff.
Because Microsoft acts like a monopolist, they are EXTREMELY profitable. However, even split up, Microsoft can make HUGE profits as the Baby Bills. However, if they are sacked with HUGE legal fees, class action lawsuits for over-pricing Win98, and other sanctions, Microsoft could be devastated. Now, neither the DOJ or Microsoft have any reason to see MS destroyed. The DOJ needs to restore competition in the marketplace, not attack MS...
I'm intrigued. I had been figuring that there is close to no chance of settlement. Now, I don't know.
A mediator doesn't impose a solution, but tries to bring the parties together. Someone with experience in the particular area can be useful, and may be more able to get them to see eye to eye.
And thus the interest in Posner. Judge Posner is the second leading authority on antitrust law today (behind Bork). You can quote Posner's writing to argue that Supreme Court precedent is wrong--and the odds will be on your side. If there's any one person left in the country that can get it through Microsoft's head that they didn't win, this is the man--Bork has already been hired by Netscape.
I'd still put odds against a settlement happening, but they just changed.
MS has been doing a lot of posturing and spin-control, but the whole purpose of Jackson's releasing the findings-of-fact ahead of time was to announce to MS 'settle or be hit with a sledgehammer.' Jackson's been pushing the parties to settle all along, but nothing's come of it.
Of course, MS might -not- settle. They're continuing to reap profits from their monopoly position as they draw out the court case. (They have cooled off a -little- but they're still pretty aggressive.) Well. I'm all in favour of MS not settling. I'd be perfectly happy to see them broken into smithreens and strangled with restraints. If that happened, Linux is poised to 'take over' and whether it's linux or not, a world of posix-compliant target machines is what I want to code for.;) Okay, I've tangented into fantasy. If MS knows what's good for them, they'll settle, and Windows will have a long lifespan yet.
Hmm, so the question is, would it really be better if Microsoft was broken up into smaller companies?
In my job I spend a great deal of my time dealing with phone companies and I would be hard pressed to say that any of the baby bells are any better than ma bell used to be.
Did they lose power when they were split up? I suppose they did, but it didn't improve their service. How much power did they really lose anyway.
Is there a way to split Microsoft up that is both sensible and removes some of the awesome power they currently wield over the market?
Personally, my political beliefs make me feel that the behavior of Microsoft should be handled by the consumer, not by the government. I don't want the government making decisions for me, how can I in good conscious ask it to make decisions for a company?
So readers, here's a challenge: Microsoft has finally and for the last time been ruled a monopoly. You've been asked to handle it, what do you do with Microsoft (within the bounds of the law and common sense) to prevent their monopolistic behavior. If you split them up, how, what kind of companies do you create, handling what products.
Liz
-- --
The quality of Doubting is rare among men, and a few choice souls are born with it.
--Anatole France
Most interesting of all is the comment (almost a footnote) made in the CNN reporting that contrasts directly with what today's "Antitrust Experts" appeared to imply.
Namely, that the Findings of Fact have no legal meaning:
A settlement also could have more far-reaching results in Microsoft's favor. If Microsoft and the government reach a settlement, Jackson's finding of monopoly power would never become final, and firms seeking to sue the company would have to go through the difficult task of proving its monopoly position.
I have heard something very similar from a lawyer friend who is sympathetic to Microsoft. Contrary to the prevailing assumptions in the media I consume (slashdot, theregister, etc) apparently a Judge's Findings of Fact set no legal precedent and are not admissable in other court cases. The FoF do not have any legal ramifications until they are incorporated into Jackson's Findings of Law, or final ruling.
This is interesting because, although it seems unlikely that an appellate court would tamper with Jackson's FoF, modifying elements of a legal ruling that contained facts is precisely what an appellate court is supposed to do. If this is the case, then the Findings of Fact cannot be said to be entirely unassailable. An interesting possibility.
Somewhat tangentially, I noted with surprise that some of the Hon. Jackson's Findings essentially pass edicts about various other cases Microsoft is currently litigating. For example, Jackson finds it to be a "Fact" that Microsoft polluted Java. It seems peculiar to me that this Judge could make a sweeping finding such as that, considering that an entire secondary case is currently pending on that matter and presumably entails greater depth of evidence and witness testimony. I wonder what would happen if Jackson were to incorporate the Java-pollution "Fact" in his legal findings, and then Sun were subsequently to lose its battle against Microsoft in that trial. Which "Fact" would legally prevail?
-konstant
-- -konstant Yes! We are all individuals! I'm not!
Yes, you called it simplified, but you oversimplified to the point of falsification.
Posner is a leading member of the Chicago School, the body of thought from the Law School and Economics Department at the University of Chicago that are very big on competition--and the econ department which picked up four *consecutive* nobel prices recently.
The Chicago school does *not* claim that the open market corrects all monopolistic problems. Read Bork and *gasp* Posner and you'll see this. The change in law as the Bork/Posner view replaced the old antitrust law is that it is the effect on consumers, and not competitors, that matters. Bork explicitly defines competition as whatever benefits consumers--if mergers that will leave two firms instead of ten will lower prices, the merger is pro-competitive.
Posner doesn't necessarily go that far, but expects antitrust law to make economic sense.
And the extreme wing of the chicago school believes that in some cases, one firm is enough for competitive behavior to hold, since other firms *could* enter.
But the catch (which you'll find in Posner's writings) is that competition has to be working. If competition is possible, and is alive in the industry in question, they expect it to make use of monopoly power impossible. They don't see it so much as a *cure*, but as a way of determining whether or not a monopoly couldhurt consumers.
They most certainly do not think (as a group) that antitrust law should be eliminated (Posner's textbook on the subject is about five feet behind me:), but that the portions which harmed consumers (such as Brown shoe, which protected us from low prices on quality goods) should be tossed. This means tossing the "Big is Bad" principle, and actually looking at what's happening.
Richard Posner is the leading advocate of the Chicago school of Economics, which, to boil it down somewhat simplisticly, believes that the market should not be interfered with at all by government. Antitrust is an area of law which should almost entirely be elminated. They believe that the open market will correct monopolistic problems.
Not to be snide and throw back people's earlier comments in their faces or anything, but I would like to point out that many slashdotters appear to side with the views you are attributing to Posner here. While defenders of Microsoft seem to be rare, the viewpoint that Microsoft's demise is "inevitable" seems fairly prevalent.
I have encountered more than one comment to the effect that "the DoJ should hurry up: Microsoft won't be a monopoly ten years from now".
Please could we consider the possibility that this position is hypocritical? Is the purpose of government intervention to remedy a trust, or is it to punish Bill Gates, a man many people here evidently wish they could strip nude and whip through the muddy streets. If we believe that Microsoft must fall because it (never innovates|makes shit for products|rapes users|introduces security holes) then what is all the fuss?
It appears to me that all the arguments for the notion that Microsoft's time is short imply that users will ultimately choose software freedom over software convenience. I wonder whether that is true.
Punishment as a corrective makes sense, but I for one, am not into punishing people or companies merely for the sake of punishing them.
-konstant
-- -konstant Yes! We are all individuals! I'm not!
>The FoF do not have any legal ramifications until >they are incorporated >into Jackson's Findings of Law, or final ruling.
That's entirely consistent with what we wrote. In fact, we would have written that, had we been presented the question. However, assuming we get to conclusions of law, these findings give us a very good idea what those conclusions will be.
>This is interesting because, although it seems >unlikely that an appellate court would >tamper with Jackson's FoF, modifying elements of >a legal ruling that contained facts is > precisely what an appellate court is supposed to >do. If this is the case, then the Findings of > Fact cannot be said to be entirely unassailable. >An interesting possibility.
This doesn't follow. The conclusions of law will be based on the findings of fact, and can be easily modified. However, the findings of fact would remain untouched in any such change; the appellate court would not change them when making new rulings.
> I noted with surprise that some of the Hon. >Jackson's Findings essentially pass edicts about >various other cases Microsoft is currently >litigating
Nothing unusual here. That other parties have litigation pending in those matters in no way prevents the government from bringing them up in this case, which it did.
>I wonder what would happen if Jackson were to >incorporate the Java-pollution "Fact" in his >legal findings, and then Sun were >subsequently to lose its battle against Microsoft >in that trial. Which "Fact" would legally > prevail?
In this case, it would be as litigated in this case. Also, the private litigation cannot be used as proof in other cases. While different rules apply to government antitrust cases, those who were not parties to litigation are not bound by its factual findings.
An interesting (and dangerous) choice
by
Rilke
·
· Score: 5
Posner is generally considered one of the leaders of the Chicago "Law and Economics" school of thinking, whose best-known "member" is probably Robert Bork (not that Posner and Bork are interchangable). But if MS had to choose a mediator, Posner just might be the person they'd most prefer.
In "Natural Monopoly and its Regulation", he came out pretty strongly against regulating monopolies, saying basically that the cure (i.e., regulation) was worse than the disease.
One of the standard tests of monopoly comes from one of Posner's decisions (Olympia Leasing vs. Western Union, though, where he says that illegal actions being when a company...
"Retaliates against customers who have the ternerity to compete with him by cutting such customers off...in order to discourage competition."
This speaks pretty directly to the IBM portion of the FoF. But a final quote from Olympia Leasing is a bit more worrisome...
"Most businessmen don't like their competitors, or for that matter competition. They want to make as much money as possible and getting monopoly is one way of making a lot of money. That is fine, however, so long as they do not use methods calculated to make consumers worse off in the long run."
The "...but we haven't hurt the consumers" argument is exactly what MS has been pushing all along.
He didn't mean to say that. What he meant to say (to give him the benefit of the doubt) is that Judge Posner is one of the founders of school of legal thought known as law and economics. Law and economics is usually associated with the University of Chicago, where Judge Posner has taught for many years. He and Nobel Prize winning economists like Ronald Coase and George Stigler (among others at the U of C) are credited with much of the research and writing fundamental to the law and economics approach.
To suggest that law and economics views all regulation of the market as bad and therefore that Judge Posner will automatically favor Microsoft is a serious oversimplification. It's worth remembering that Larry Lessig, who was dismissed as special master in the M$ case because of his perceived bias against M$, was a University of Chicago law professor as well.
I got my law degre from U of C and studied under Judge Posner while there, so I felt the need to post something. I'm not sure how I feel about this turn of events and I expect to post more later after I've had some time to think, but it must be noted that, of all the things Judge Posner can be accused of being, he is not stupid. In fact, though many disagree with his views, I can say almost without fear of contradiction that he is one of the smartest people on the planet. This is a very interesting development on which more later.
-- "The true administration of justice is the firmest pillar of good government." - George Washington
Slashdot Mirror
This is the case of importance in technology today, or at least it appears to be. (I suspect that open access to broadband networks will be the decision that matters in the long run). It is facinating because nearly everyone (except Tom Christiansen apparently) uses or has used MS software and everyone (including Tom) has an opinion about it.
/. have a negative opinion of the quality of MS software, but even more than that, most people don't like the heavy-handedness with which they have to gained and retained market-share. This feeling has been intensified since MS has taken aim at such sacred cows as Linux and open source software. Many of these same people are also wary of the power of government and don't believe that legal solutions to technical problems lead to salutory results. So here we are faced with a legal process that vindicates the ./ opinion of MS and has the potential to change the competitive landscape of software. Yet there is the nagging suspicion that the government will get it wrong and agree to a settlement/remedy that is too strong, too weak, or has too many negative side effects. Of course we're interested.
Most people on
--
"L'IT c'est moi!"
The deal is this: if MS are sane, then they will settle. However, it's not a foregone conclusion that MS _are_ sane: some of their behavior in the case seemed delusional, and apparently the company is now fighting desperately to keep its own employees from 'losing faith' and believing in things like the findings of fact. I'd say there was a very good chance that the Microsoft side will go down fighting, simply because they are quite seriously insane when compared to the standard of sanity set by judges and juries and normal people. In this sense they don't know what's good for them because they will not entertain the idea that they might have done anything wrong: when the leadership of a company is that strong and that determined to stick with a course of action, they may decide that no judge is qualified to pass judgement on them. They're being asked to accept as fact that they've done many harmful things, and it may be a lot to ask to expect these people to admit they've done wrong. Don't always assume the MS leadership are perfectly sane rationalists. They are considerably more passionate and fanatical than that.
Not much incentive here to obey the law, is there?
Check out this article on why MS almost certainly did break the law, and not the one everyone's arguing about.
George Washington University Law Professor Bill Kovacic gave some analysis of the referral on NPR's All Things Considered. The Real Audio file is here.
--
"L'IT c'est moi!"
To understand why, one must understand the purpose of a mediation. In a mediation, the mediator serves as a facilitator to help the parties to find a settlement when, in fact, they each have minimum positions with which the other party can live. Very often, two adversarial parties are unable to break the rhythm of posturing and stating their strongest views, making it impossible to narrow the gap.
A mediator typically takes each party aside, points out civilly what of their posturing is bullshit, reminds them civilly of the risks of proceeding and asks them confidentially to disclose their best position (to the extent they feel comfortable doing so). A really good mediator can help the parties to feel comfortable reducing their posturing so they can get down to real-life horsetrading and settle the damn dispute.
Judge Posner's views and politics are decidedly pro-Microsoft in these facts. Judge Posner would probably argue that there is no such thing as a real "barrier to entry," the very fulcrum of Judge Jackson's FOF. But so what? This is precisely why he is the perfect choice.
Judge Posner's views, whatever you may think of them, do not diminish his stature. He is the lion of antitrust law and jurisprudence (particularly given that Judge Bork has hung up his robes). He is also brilliant (though I don't agree with a great deal of his writings or analyis), and a remarkably fast and analytical thinker.
In short, no one is going to bullshit him. He will have comebacks, regardless of who is trying to stake out their position. And the setting aside of bullshit is the fuel of mediation. Posner can deflate the theory of the government's position, when in caucus with the government, and he can destroy Microsoft's confidence in its position when in caucus with Microsoft. Why but Posner could really accomplish this in view of these findings of facts?
The purpose of mediation is to achieve a settlement when it is possible (typically one with both parties holding their stomachs as they sign), or to declare an impasse with as little pain as possible.
True, Posner gives Microsoft a sense of an "edge" going in. How do you think the government feels about the findings of facts? A "settlement session" where the government dictates terms may be satisfying for the egos of the government, but it will not achieve a settlement. Posner can balance things for the purposes of mediation, so that the horsetrading can happen -- if it can happen at all.
I'm not a fan of the Chicago school of economics (after Milton Friedman helped the Chilean dictatorship screw its workers I'm certainly not a fan of its biggest proponents), but Posner is definitely the most qualified person Judge Jackson could have chosen.
Posner is most likely to understand what is in the findings of fact and knows that a slap-on-the-hands consent order is not going to be good enough, regardless of his ideology. Because he is well-known as a conservative judge, the libertarian fringe in the business community is unlikely to be able to claim big government is unjustly interfering with Microsoft.
This guy has it together enough to help punish Microsoft, and has a reputation that makes him unimpeachable if and when he does. This is one of those "only Nixon could have gone to China" cases where, despite being an unrepentant liberal and a soft Keynesian, I agree that the conservative is the right choice.
Microsoft has to be scared. They have no way of knowing what kind of punishment the court will mete out. The Justice Department has the same problem, but has political problems on top of that - 2000 is an election year and no one wants to make potential big business campaign contributors unhappy. Both have a vested interest in negociating something. In arbitration, they have some control over the outcome - in a court, no one knows.
Of course, both sides are still far apart on what ought to be done. Microsoft is adamant that they should be able to put anything they want in Windows, and that they won't permit disclosure of the source in any way. It's hard to see what the DOJ could ask for outside of such solutions, except perhaps actually breaking up the company.
I agree with Dr Hawkins below - the odds of settlement have improved. How much depends on how scared Microsoft is. The DOJ can't back down now - if there is no settlement, they will let the cards fall where they may. Any politician who is going to be hosed by the Microsoft case already has been.
This is merely an attempt to reach a settlement. Microsoft is clearly in trouble because of the FoF, and they don't want to have court imposed sanctions. It would likely be appealed straight to the Supreme Court, which would probably not overturn the decision unless the Judge ruled something REALLY inane.
Mediation can keep the parties in perspective during negotiations. The Judge is serving in `private capacity' but I don't know what that means. I'm assuming that his time is paid by the parties involved, but who really knows.
I understand that after the case is closed, the FoF is considered admissable evidence in all the private anti-trust cases. If Microsoft settles, is the FoF still binding, or does the case disappear? I'm guessing the latter, which is why MS is looking to settle instead of fight. Even if the appeal wins them points from the Conclusions of Law (unlikely), they will most likely be economically ruining by the private civil anti-trust cases. Don't think so? I think that they can get up to triple damages... want to see what a few billion in legal costs do to Microsoft's cash flow? Realize that market capitalization isn't cash onhand, merely their valuations. A hit of $10-15 billion in cash would devastate Microsoft... and that would be on top of a massive penalty for the anti-trust stuff.
Because Microsoft acts like a monopolist, they are EXTREMELY profitable. However, even split up, Microsoft can make HUGE profits as the Baby Bills. However, if they are sacked with HUGE legal fees, class action lawsuits for over-pricing Win98, and other sanctions, Microsoft could be devastated. Now, neither the DOJ or Microsoft have any reason to see MS destroyed. The DOJ needs to restore competition in the marketplace, not attack MS...
Alex
I'm intrigued. I had been figuring that there is close to no chance of settlement. Now, I don't know.
A mediator doesn't impose a solution, but tries to bring the parties together. Someone with experience in the particular area can be useful, and may be more able to get them to see eye to eye.
And thus the interest in Posner. Judge Posner is the second leading authority on antitrust law today (behind Bork). You can quote Posner's writing to argue that Supreme Court precedent is wrong--and the odds will be on your side. If there's any one person left in the country that can get it through Microsoft's head that they didn't win, this is the man--Bork has already been hired by Netscape.
I'd still put odds against a settlement happening, but they just changed.
hawk, esq.
MS has been doing a lot of posturing and spin-control, but the whole purpose of Jackson's releasing the findings-of-fact ahead of time was to announce to MS 'settle or be hit with a sledgehammer.' Jackson's been pushing the parties to settle all along, but nothing's come of it.
;) Okay, I've tangented into fantasy. If MS knows what's good for them, they'll settle, and Windows will have a long lifespan yet.
Of course, MS might -not- settle. They're continuing to reap profits from their monopoly position as they draw out the court case. (They have cooled off a -little- but they're still pretty aggressive.) Well. I'm all in favour of MS not settling. I'd be perfectly happy to see them broken into smithreens and strangled with restraints. If that happened, Linux is poised to 'take over' and whether it's linux or not, a world of posix-compliant target machines is what I want to code for.
--Parity
--Parity
'Card carrying' member of the EFF.
Most interesting of all is the comment (almost a footnote) made in the CNN reporting that contrasts directly with what today's "Antitrust Experts" appeared to imply.
Namely, that the Findings of Fact have no legal meaning:
A settlement also could have more far-reaching results in Microsoft's favor. If Microsoft and the government reach a settlement, Jackson's finding of monopoly power would never become final, and firms seeking to sue the company would have to go through the difficult task of proving its monopoly position.
I have heard something very similar from a lawyer friend who is sympathetic to Microsoft. Contrary to the prevailing assumptions in the media I consume (slashdot, theregister, etc) apparently a Judge's Findings of Fact set no legal precedent and are not admissable in other court cases. The FoF do not have any legal ramifications until they are incorporated into Jackson's Findings of Law, or final ruling.
This is interesting because, although it seems unlikely that an appellate court would tamper with Jackson's FoF, modifying elements of a legal ruling that contained facts is precisely what an appellate court is supposed to do. If this is the case, then the Findings of Fact cannot be said to be entirely unassailable. An interesting possibility.
Somewhat tangentially, I noted with surprise that some of the Hon. Jackson's Findings essentially pass edicts about various other cases Microsoft is currently litigating. For example, Jackson finds it to be a "Fact" that Microsoft polluted Java. It seems peculiar to me that this Judge could make a sweeping finding such as that, considering that an entire secondary case is currently pending on that matter and presumably entails greater depth of evidence and witness testimony. I wonder what would happen if Jackson were to incorporate the Java-pollution "Fact" in his legal findings, and then Sun were subsequently to lose its battle against Microsoft in that trial. Which "Fact" would legally prevail?
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-konstant
Yes! We are all individuals! I'm not!
Yes, you called it simplified, but you oversimplified to the point of falsification.
:), but that the portions which harmed consumers (such as Brown shoe, which protected us from low prices on quality goods) should be tossed. This means tossing the "Big is Bad" principle, and actually looking at what's happening.
Posner is a leading member of the Chicago School, the body of thought from the Law School and Economics Department at the University of Chicago that are very big on competition--and the econ department which picked up four *consecutive* nobel prices recently.
The Chicago school does *not* claim that the open market corrects all monopolistic problems. Read Bork and *gasp* Posner and you'll see this. The change in law as the Bork/Posner view replaced the old antitrust law is that it is the effect on consumers, and not competitors, that matters. Bork explicitly defines competition as whatever benefits consumers--if mergers that will leave two firms instead of ten will lower prices, the merger is pro-competitive.
Posner doesn't necessarily go that far, but expects antitrust law to make economic sense.
And the extreme wing of the chicago school believes that in some cases, one firm is enough for competitive behavior to hold, since other firms *could* enter.
But the catch (which you'll find in Posner's writings) is that competition has to be working. If competition is possible, and is alive in the industry in question, they expect it to make use of monopoly power impossible. They don't see it so much as a *cure*, but as a way of determining whether or not a monopoly couldhurt consumers.
They most certainly do not think (as a group) that antitrust law should be eliminated (Posner's textbook on the subject is about five feet behind me
hawk, esq.
Richard Posner is the leading advocate of the Chicago school of Economics, which, to boil it down somewhat simplisticly, believes that the market should not be interfered with at all by government. Antitrust is an area of law which should almost entirely be elminated. They believe that the open market will correct monopolistic problems.
Not to be snide and throw back people's earlier comments in their faces or anything, but I would like to point out that many slashdotters appear to side with the views you are attributing to Posner here. While defenders of Microsoft seem to be rare, the viewpoint that Microsoft's demise is "inevitable" seems fairly prevalent.
I have encountered more than one comment to the effect that "the DoJ should hurry up: Microsoft won't be a monopoly ten years from now".
Please could we consider the possibility that this position is hypocritical? Is the purpose of government intervention to remedy a trust, or is it to punish Bill Gates, a man many people here evidently wish they could strip nude and whip through the muddy streets. If we believe that Microsoft must fall because it (never innovates|makes shit for products|rapes users|introduces security holes) then what is all the fuss?
It appears to me that all the arguments for the notion that Microsoft's time is short imply that users will ultimately choose software freedom over software convenience. I wonder whether that is true.
Punishment as a corrective makes sense, but I for one, am not into punishing people or companies merely for the sake of punishing them.
-konstant
-konstant
Yes! We are all individuals! I'm not!
>The FoF do not have any legal ramifications until
>they are incorporated
>into Jackson's Findings of Law, or final ruling.
That's entirely consistent with what we wrote. In fact, we would have written that, had we been presented the question. However, assuming we get to conclusions of law, these findings give us a very good idea what those conclusions will be.
>This is interesting because, although it seems
>unlikely that an appellate court would
>tamper with Jackson's FoF, modifying elements of
>a legal ruling that contained facts is
> precisely what an appellate court is supposed to
>do. If this is the case, then the Findings of
> Fact cannot be said to be entirely unassailable.
>An interesting possibility.
This doesn't follow. The conclusions of law will be based on the findings of fact, and can be easily modified. However, the findings of fact would remain untouched in any such change; the appellate court would not change them when making new rulings.
> I noted with surprise that some of the Hon.
>Jackson's Findings essentially pass edicts about >various other cases Microsoft is currently
>litigating
Nothing unusual here. That other parties have litigation pending in those matters in no way prevents the government from bringing them up in this case, which it did.
>I wonder what would happen if Jackson were to
>incorporate the Java-pollution "Fact" in his
>legal findings, and then Sun were
>subsequently to lose its battle against Microsoft
>in that trial. Which "Fact" would legally
> prevail?
In this case, it would be as litigated in this case. Also, the private litigation cannot be used
as proof in other cases. While different rules apply to government antitrust cases, those who were not parties to litigation are not bound by its factual findings.
Posner is generally considered one of the leaders of the Chicago "Law and Economics" school of thinking, whose best-known "member" is probably Robert Bork (not that Posner and Bork are interchangable). But if MS had to choose a mediator, Posner just might be the person they'd most prefer.
In "Natural Monopoly and its Regulation", he came out pretty strongly against regulating monopolies, saying basically that the cure (i.e., regulation) was worse than the disease.
One of the standard tests of monopoly comes from one of Posner's decisions (Olympia Leasing vs. Western Union, though, where he says that illegal actions being when a company...
"Retaliates against customers who have the ternerity to compete with him by cutting such customers off...in order to discourage competition."
This speaks pretty directly to the IBM portion of the FoF. But a final quote from Olympia Leasing is a bit more worrisome...
"Most businessmen don't like their competitors, or for that matter competition. They want to make as much money as possible and getting monopoly is one way of making a lot of money. That is fine, however, so long as they do not use methods calculated to make consumers worse off in the long run."
The "...but we haven't hurt the consumers" argument is exactly what MS has been pushing all along.
To suggest that law and economics views all regulation of the market as bad and therefore that Judge Posner will automatically favor Microsoft is a serious oversimplification. It's worth remembering that Larry Lessig, who was dismissed as special master in the M$ case because of his perceived bias against M$, was a University of Chicago law professor as well.
I got my law degre from U of C and studied under Judge Posner while there, so I felt the need to post something. I'm not sure how I feel about this turn of events and I expect to post more later after I've had some time to think, but it must be noted that, of all the things Judge Posner can be accused of being, he is not stupid. In fact, though many disagree with his views, I can say almost without fear of contradiction that he is one of the smartest people on the planet. This is a very interesting development on which more later.
"The true administration of justice is the firmest pillar of good government." - George Washington