It was interesting to see the ILM Director of Research and Development, Andy Hendrickson, say this: "As we get into Linux we're not finding one company to hand-hold. IBM and HP aren't there, yet. But, before Linux it was out of our control and out of control. [Now] we own our Linux problems."
That's really not a great position to be in, is it Andy? I mean, they bought the workstations from fucking Dell but obviously Dell tech support is in no position to aid them on the technology of the OS. Or anything beyond installing a ethernet driver or scanner on Windows, if even that. So about this time I am wondering:Gee wouldn't it have made better sense to buy the Intel hardware or support from SGI (who was trying to get started with Lintel workstations) so you could at least be dealing with people who CAN help with technical issues a linux customer is experiencing?
we do not need consolidation, we need multiplication!!! spin off the parts that are brining you down HP,
First spinoff: Carly Fiorina. Who'll give me a plug nickel? Who'll give me a green stamp. Ladies and gentlemen the auction for this fine item of American corporate management expertise has begun and bidding starts at one S&H green stamp or 2 crackerjack boxtops... what am I bid? Full many a industrial giant could restore or ensure their longterm profitability with a similar move: spin off your upper management as a crack consultation firm. Or a shroom consultation firm --whatever their hallucinations most closely resemble. HP repent.
Because it doesn't exist? And maybe these helpful Finns could supply one porting the same OpenOffice source they're using to release modified X86 versions for windows and linux?
There's been a mixup. You're supposed to point your browser to www.wecantfindthewayout.com
The site is mirrored at www.pleabargainingisthewayout.com and www.when weshutoureyestheworldvanishes.com
Speaking of sleepytime, Bill has asked me to say "Will the last person to leave wecantfindthewayout.com please shut off the lights?"
Thank You.
Re:Good to see misinformation is alive and well.
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Globalism Post 9/11
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Uh Oh . Aren't you a little young to be amassing an FBI "shady character" dossier?
Re:Semantics: Globalism vs. Corporate Imperialism
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Globalism Post 9/11
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Semantics indeed! To make globalism work, we need to give people control, including the power to move around the world as easily as corporations and capital. Doesn't this seem....slightly... ridiculous ? Globalism is working exactly as designed. Away from control of mere people. On a plane of existence blissfully ignoring the civilized legal traditions of sovereignty and democracy.
There is no Globalism in existence apart from the physical actions, words and plans of individuals and factions promoting and enacting globalization of world capital, labor and commodity markets.
It's an utter hallucination to speak of some pure " -ism" or some flawless ideal of globalism floating in a Platonic dimension of forms, that is beneficial and tender hearted intending the betterment of all mankind blah blah blah.... It is a trick of language producing a mirage upon the surface of the mind. It does not exist. What exists is the globalization we have experienced. What we have seen. Past things we can discover through documents. Bank records. Confessions. There is no other globalization to talk about.
You say the United States government "confuses" globalization with their fuzzy headed, baser impulses towards some new kind of imperialism...
Well Pilgrim, they INVENTED and originated this globlization, and to make it live up to its global, planetwide attribute, they ENFORCE it with World Trade Organizations, International Monetary Fund "austerity" plans and, the US Navy 6th and 7th fleets, and USAF intercontinental bombers. If there is a disagreement between your version of globalism and theirs - who wins? If your idea of globalism challenges theirs it will wither beneath real napalm, real cluster bombs, real cruise missiles. They are not confused. They are not in doubt when they deploy these things in pursuit of globalization.
They know what the pure project of globalization is, thank you very much - and they are pursuing it. All you and I have to do is to insure it through tax funded government bailouts of wayward insolvent banks, and to fight and die for globalization, waving our country's flag. Same deal as before with Britain and other powers in the 1800s.
If we are to discuss the true essence of this entity, globalism, whose version of globalism are we to prefer? Your made up idea or their daily practice? It is utterly ridiculous to speak of globalism's "essence", like it was some kind of ghost standing in back of the globalism we can actually see with our eyes, an angel of Globaliszation's better nature, watching and hoping mortal, corporeal globalism will finally straighten up and "do right". There is no essence, only practice.
So it is their globalism, their Corporate-Imperialist version of it that owns the word. The globalism of the doers, the takers and the schemers, those actually implementing and enriching themselves by globalization: THAT has positive existence; the globalization of the dreamers and the idealists is less substantial than a fart in the wind.
Arab radio stations may have this or that 30 years ago -or today, but it remains the truth that only Israel attacked US military personnel during the `67 war.
I refer to the USS Liberty "incident" in which Israeli planes rocketted napalmed and strafed a Navy e-lint trawler which was prominently marked and flagged as a USN vessel in international waters. Israeli helicopters and torpedo boats torpedoed the Liberty, machinegunned her decks and even shot up the life rafts full of US sailors, causing over the deaths of over 30 American seamen and the wounding of over 150 more.
But hey, they've forgotten about little bygones like that at National Review almost as soon as they happened. Cuz they're so darn patriotic.
(BTW: Ann Coulter formerly of National Review and other gutter publications, said in her column that we should invade all Muslim countries, kill all their leaders and force all their people to convert to Christianity. This level of homicidal psychotic ranting was a little de trop for even National Review, and they let her go. Shall the world judge the United States and its people based solely on the insane rantings of Ann Coulter, Rush Limbaugh, and the other uncaged loonies? You may not like the result once it starts, so have a care how you judge others.)
so they rewrite Explorer and related dlls to separate IE from internal html uses. Problem? They rewrote a damn sight more to move video drivers into the kernel, making NT less stable between 3.5 and 4.0 You know, usually, when you're found guilty of breaking the law you are required at minimum to change your ways a bit. But I realize we're talking about Microsoft.
maybe not ugly but definitely amateurish in places. Fortunately for me, I don't know what Fitt's law is, so we needn't argue about whether or not it makes me a GUI guru. My genes make me a GUI guru.;-)
Now hear my whine(s). If I had to use Keramik it would drive me crazy with its hyped contrasts. (I haven't used the original OSX aqua for more than a couple of minutes so I couldn't say whether it was just as bad.)
That second screenshot is right down there knocking on the door of ugly. The way the darker blue is used inside of the lighter frame is just wrong. Maybe if I could control the ratio of one value to the other I could live with a monochromatic scheme inverted like that, but the way they did it and those title bars? Unh-uh.
In all the screenshots of Liquid that I have seen , the nice color gradients could not hide that perennial KDE theme atrocity: discrete little button surrounds for every icon in the toolbar, with all the buttons jammed hard together to the left. Ugh. This one is the vomit-maker. Thankfully the button boxes aren't part of the default KDE theme, but they seem hard to avoid when you leave the default KDE theme. Half of the themes have this eyesore of a billion little outlined buttons in the toolbar. Many a Gnome theme and app has the same problem. Look at Bluefish using something like a GTK aqua theme. Incompre-fucking-hensible. The law this violates is called Tandy's Paradox: the human eye/brain apparatus follows lines unconsciouly -autonomically. Therefore, the more you as a GUI designer try to set off adjacent things with little bounding lines , and especially lines that change direction making angles and closed figures, the more busy and less clear things actually become, unless: a) The closed figures are few in number and large; or b) the closed figures are set off with a grid of spaces that give a pleasing interval of figure to ground allowing the eye to stop, offsetting the busyness (but wasting screen real estate in the process and requiring more code). Legibility is not a matter of taste. Try to use as few lines and separate 3d modelled surfaces as humanly possible in your GUI,then eliminate 50% of those remaining. Now you're right. Well I think that's enough for today.
Oh yeah I forgot one thing, Bering won't work for BSD users. Just everyone else. Nothing you can do about that.
Making 1680K floppies shouldn't be a problem for anyone. There are Windows tools that format the floppy and copy the image file in one go for those lacking UNIX skills. The other "difficulty" of floppies over the usual 1440K size is quality. Bad quality floppies will frequently fail to format at 1680 but all modern controllers BIOSes and floppy drives will handle 1680, even MSDOS understands it without trickery. I say bad quality floppies because experience tells me that these are the same brands that develop errors early on when left in 1440K format. If you're using floppies that often fail to format 1680K they are going to bite you in the ass at 1440K within a short while anyway, which is not desirable for a router or other embedded appliance type UNIX server. It's best to replace a batch of bad floppies than cherry pick the good ones from a batch of low quality diskettes and hope they will last.
Actually most of the Linux stuff is using old 2.2 kernels as well (um, Jan. 1999)...
Well, actually the 2.2 series kernel is very much alive and maintained. There are plenty of Linux floppy distros that are keeping up with revisions of the 2.2 kernel. If you visit their pages, as on leaf.sourceforge.net you can see that they are also responding to security concerns in secondary packages, like libz and openssh.
No stateful firewalling for you.
If you absolutely need stateful packet filtering you can use Bering, a floppy firewall based on Linux kernel series 2.4
In fact, there are tons and tons of dead single-floppy Linux distros... whatever.
Which is just what you would expect to see anywhere in free unix where there is abundant life and tons and tons of open projects. It's an ecology.
I am glad to see ClosedBSD. A few days ago was the first time I read that name anywhere and I didn't get an idea of what the project was about. I won't rag on the limited package options for CLosedBSD since it's clear that they're just starting out.
I think all the current single-floppy distros suck (Linux or BSD).
I have to disagree. Sometimes you have to look on the bright side. Our options are great compared to Microsoft-only users. There are floppy routers based on DOS (I think) but that is a technologically stunted backwater of the MS world and there's nothing the open or closed projects for DOS firewalls can do to improve that situation. We have many vital projects that are able to make use of the best possibilities of the IA32 architecture, a wide range of configuration choices including hybrid CDROM/Floppy distros, multifloppy distros, wireless gateway distros, options for all kinds of services -not just routing- and we have large user support communities. Working with floppies is never going to be painless but really with all the choice, flexibility and support that's out there, these are the good old days. Instead of starting a whole new floppy UNIX why not join ClosedBSD as a contributor? The best Linux-on-Floppy distros are ones that attract lots of contributors and people offering specialized versions of the main tree.
Why do I have to "not forget" that the BSD's have something Linux has, in this case a floppy based version of bsd? Is there actually something in it for me or is it just so you don't feel bad about BSD?
I've looked into Pico BSD and the subject of floppy based BSD off and on for a couple of years. There's nothing going on there -or last I looked it was still dead.
Pico BSD is a defunct project and there were no surviving offspring. It's not being maintained, as the downloadable images all date from 1998. So it's unsafe in any setting you need a UNIX in, and pretty much useless unless you just get a thrill from loading a UNIX style OS from a bootable medium the rest of the world rememebers best as a vector for DOS viruses and typing 'ls' and marvelling at yourself. To handle and touch an OS this far fallen into decay and death has to be a kind of antiquarian's fetish. Before you sit down to type at the console, you should be sure to put on some harpsichord music and your favorite mauve satin smoking jacket. Atop your monitor should stand a seven armed silver candelabra and the room should be dark and cold as a tomb. Use a Ouija board to generate passwords. Then my heart it grew ashen and sober As the leaves that were crisped and sere - As the leaves that were withering and sere; And I cried: "It was surely October On this very night of last year That I journeyed -I journeyed down here! - That I brought a dread burden down here - On this night of all nights in the year, Ah, what demon hath tempted me here? Well I know, now, this dim lake of Auber - This misty mid region of Weir - Well I know, now, this dank tarn of Auber, This ghoul-haunted woodland of Weir."
I've checked for a floppy version of OpenBSD. Mr. De Raadt has expressed an unwillingness for OBSD to be floppyized. Some people were talking about it anyway but there was nothing going on, nothing to use. Since you are into BSD and haven't mentioned it I will assume that the floppy based Open BSD is still sharing a bunk with OBSD.iso's on the Pullman car of sweet maybes rolling down track 29 to Ulalume Terminal.
With Linux on the other hand there are a number of robust open projects and commercial products that answer to the description of "floppy based UNIX router, that is actively maintained". I don't have to imagine them as still living, and harangue strangers about not forgetting them. They manage to attract a fair amount of attention to themselves without strident evangelizing.
Take a look at all of the DaimlerChrysler passenger car websites such as Chrysler [chrysler.com] or Dodge [4adodge.com]. They all use layers and do not render correctly in Mozilla as a result.
Proving that the sphere of their gross incompetence is not restricted to cars and trucks alone. who cares. Do you think Microsoft's bribes to their CIO can make up for the lost revenue not being visible to 30 million AOL subscribers? I doubt it , but then again I couldn't care less if they can accurately calculate their interests or not. Same goes for the other 1450 fuckwits. Mozillans: Tranquility Base here, the LIZARD HAS LANDED.
A company makes an innovative software product, and can't remain afloat, thanks in part to the pathological cheapness of the Linux crowd.
Yeah except that you forgot Blender was just as much a Windows app (if not more so - hw acceleration was an afterthought for the Linux version). Let's hear you praise the generosity of the Windows crowd and damn Linux users again. Go ahead.
Now as for whether NaN merited money from either the Linux or Windows community, you seem to take this for granted, but I'll say this: I've never seen a "professional" graphics application of any kind without a fucking UNDO function, mapped to CTRL-Z or somewhere else. Everytime I downloaded Blender there was no undo. That was true at least for a couple of years and still true until fairly recently as far as I know. I won't blame anybody for saying that they found Blender a bitch to learn. I agree. I won't blame them for concluding it was not worth the effort to learn: Ctrl-Z is the most frequently used function of any kind of graphics app for new users. Blender ignored this and all the off-putting effects it has on new users. Who was the market for this app? Not 3d professionals who either have borrowed copies of what they use at work, or self-purchased copies. Newbies were the main market. Hobbyists. Blender asked for their money, but they might have done better if they had kept new users completely in the dark about the app's useability problems by offering no free download, and no trial period. Most people don't have the patience to learn a 3d app UI in the first place, Blender was after the market segment least likely to have a reason to adapt to a complex interface, and frankly they behaved in a cavalier manner in attracting their business. Sorry.
I'm sorry to see them go, but they didn't earn my money. I expect I gave them more of a chance than most people would.
Am I the only one who sees how poisonous this attitude is? No, but I bet you got the first dibs on being Grand Inquisitor. Normally you have to deal with professional politicians to see that level of shortsightedness and arrogance. Arrogance ? How about the arrogance of judging others you've never even met? Some would say singling out a group of people to carry the blame of others, calling them "cheapskates" "pathological" "poisonous" and "shortsighted" in the process is a maybe wee bit arrogant itself.
and how is an "extrude" feature innovative? No no no. Extrude wasn't the innovation, not being able to undo the extrude was the unique innovation of Blender.
I think that internal switch is more in the nature of a gradual company-wide migration of their servers from expensive proprietary UNIX boxes to Linux on X86. They need a lot of muscle. Think of all the CPU cycles used every day at AOL defragging packets as they pass from TCP/IP to whatever length packet AOL protocol uses, and sometimes back to TCP/IP for all those people with a real ISP in addition to AOL. Gecko's status really doesn't have any impact on that change unless v1.0-Day for Mozilla has some sort of anti-MS voodoo significance. Even then, it's still more effective I'm told to sacrifice a black rooster to Papa Legba on Bill Gates' birthday, but I guess every little bit helps.
People People People! This talk of AOL buying Redhat is nuts. Why the hell would AOL buy Redhat when they can redistribute/install branded versions of the Linux OS for cheap or free? Redhat is a business supporting Linux for other businesses. They put a brand name on commodity software, mostly free stuff floating about the.org TLD , and sell it as a tested configuration for which businesses may purchase support. As a sideline they develop aspects of the OS and related services. This is not AOL's sphere of banditry at all. People do not look to AOL for support services in any area of software, and AOL market exclusively to consumers, not businesses. Surely AOL management understands that Redhat's business does not fit in theirs, is not congruent nor complemetary.
AOL has scooped up quite a number of smaller companies whose products are used to acessorize the AOL client and to make it look like AOL invented the internet to a gullible public. In what way would owning Redhat fit that pattern and further that image? Unlike Nullsoft or Mirabilis Redhat makes nothing that helps children and grandmas share pr0n or stolen music or impress each other with the fact that they are so computer literate they can actually chat online. Redhat complements the AOL client and impresses the AOL installed base in no way.
AOL buying Redhat would possibly be the death of Redhat longterm since many talented people would leave, and it constitutes no advantage to AOL marketing in the shortterm.
I agree with posters below who say that AOL could market a internet appliance and web services accessed with the appliance and that they could do it with Linux. (They would need to BRAND the thing themselves, not under a partner 's name like they did before with Gateway, and they'd have to advertize it on TV) But actually owning Redhat Software outright is not a prerequisite for success with what is basically a hardware venture, and since a takeover by AOL would probably weaken Redhat instead of strengthen them, it would be a huge waste of money to acquire what they can already get much more cheaply. AOL farming support contracts for Linux webterminals to Redhat is a viable ecology; AOL buying Redhat is death by smothering for Redhat and a selfdefeating investment for AOL.
Jesus. Another multi-idiot pileup on the Cross-Clueville expressway.... You know if Mozilla is sending data to AOL or not by sniffing for it with tcpdump or ethereal, etc. No funny packets? Don't bother sifting the source if you're not already involved.
I would have liked the first action against MS to have been more effective, however you're overlooking the main reasons it wasn't: the Judge who was supposed to sign the settlement wouldn't and the reason he gave for refusing overreached in some ways, laying himself open to reversal. With the sunsequent appeal forming a significant delay and the growing political turmoil caused by it, (which allowed Microsoft to begin to portray itself as a victim being persecuted for their own success, attracting political sympathizers) MS had opportunity to wreak great deal of further harm. Remember when that settlement was proposed: 1994. There was no windows95 yet. Clinton had been President for about one year. Not exactly footdragging on the part of his DOJ. Some of the complaints heard in the subsequent trial had not even happened yet. For that matter Microsoft was not yet the colossus they are today overshadowing almost every industry. But more importantly the industry was not yet willing to cross MS and bring specific allegations against them in a courtroom. This is key. You cannot have prosecution of a monopolist without the supporting testimony of its victims. We are all MS' victims, yes, but most of us don't know anything that isn't hearsay. You need the testimony of the ISVs and PC OEMS as well as industry competitors. People have to get up on the stand and say Mr Smith of MS met with with me in my office on June4 1996 and said clearly to me: "You will crosslicense your technology to MS in exchange for knowledge of the blahblah interface or we will see to it that no OEM ever bundles your application and that it will never run correctly on Windows" Things like that. In 1994,the participation of other computer industry companies in the Tunney phase of the initial proposal was limited to an anonymous Amicus brief. It's difficult to convict someone of a crime when the witnesses won't come forward to tell their stories. The Amicus brief preserved the anonymity of the Doe companies and dealt with general problems with the proposed settlement --why its provisions were inadequate to restrain MS and why it was unenforceably ambiguous-- shying away from specifics about MS armtwisting. In 1994 they just weren't yet willing to talk. By 1998, some of them were. In between, the policies of these companies was to avoid any conflict with MS, or in the case of the top tier PC makers, to actually defend MS in public comments by their CEOs, at MS love-ins, Congressional hearings, etc. Also in between 94 and 98 the first settlement was denied, the denial was appealed the settlement was kicked to Judge Jackson for signature, Jackson then tried to oversee implementation of the settlement and eventually found MS in contempt of the terms, then he was reversed by the DC Court of Appeals, and eventually the whole settlement thrown out by them. It may appear to someone without knowledge of the case timeline that nothing much was happening from the time of the initial settlement to the time of the new antitrust action, but that's mainly due the slowness of appeals processes. The settlement hadn't been in place long at all when Judge Jackson found MS in contempt of it for tying IE to Windows98. But you have appeals on either side of that interval. The Clinton DOJ acted early, but in a twist of fate they might have acted with greater result had they waited until after windows95 came out to launch the suit. The climate in the industry changed and they would have gotten much more support from witnesses. But who could have predicted that? When the DC Appeals Court threw the first settlement out, the Clinton DOJ swiftly began a whole new antitrust action against Microsoft which they prosecuted vigorously I think you will have to admit, winning their case and leaving the successor administration with a very strong hand going into the present rounds of appeal and settlement.
If the new administration chooses to throw that strength away and negotiate a toothless settlement as they announced they would with the tobacco companies, that's hardly the fault of Janet Reno or Bill Clinton. Except of course I forget that it's always Bill Clinton's fault; for he is the Anti-Christ.
If you're looking for a villain for the strange run of good luck that MS had against the government in court during the 90s, you might turn a skeptical eye towards the DC Court of Appeals. They are the hand that has actually set Microsoft free to pillage the world not once but at least 3 times now. And they stand ready to do so again, I'm sure, if MS and the Ashcroft DOJ complain to them that Judge Kollar-Kotelly has demonstrated bias against guilty people. They vacated Judge J's remedies and thus gave MS yet another chance to settle, this time with a new adminstration which almost certainly never would have brought an action against MS in the first place. ("My administration will always favor innovation over litigation" - G. W. Bush on the day of Judge Jackson's FInding of Fact,speaking to a room of investment bankers. "Micrsoft's monopoly has materially benefitted the consumer" Atty Charles James, Bush DOJ chief of antitrust division speaking on McNeil/Lehrer News Hour.
Practically the only reason to not enter a settlement is that the nominally hostile parties are really ganging up on somebody that isn't represented.... Like
it or not, the court has to accept that the DoJ represents the people of the Un ited States.
Simply put (thanks) and simply false.
"A decree, even entered as a pretrial settlement, is a judicial act, and therefore the district judge is not obliged to accept one that, on its face and even after government explanation, appears to make a mockery of judicial power."
--DC Court of Appeals , US v Microsoft, 56 F.3d 1148 (The Reamage of Stanley Sporkin)
Apparently even the DC Circuit Court of Appeals disagrees with you, Artagel.
The originating premise of the Tunney Act (an amendment to the Clayton Antitrust Act), which is not an Executive order, nor an act of judicial fiat, but a law passed by Congress, is that sometimes, in antitrust matters, the Executive may fail to act in the public interest. Why solicit 60 days of comment from the public at large if the Justice Department is assumed to be the insuperable voice of the People? The whole thrust of Tunney's minimal requirements is to pour sunshine in on the decision making process used by DOJ when it decides to shortcircuit the working of antitrust litigation with a preremptory settlement with the defendant. Clearly it is time to remind ourselves why the Tunney Act exists in the first place.
In 1972 the Nixon DOJ announced a settlement with IT&T, a settlement which subsequently was discovered to have been the result of lobbying efforts by IT&T directly on the Nixon White House which in turn, influenced the preexisting antitrust prosecution of IT&T by the Justice Dept. Under the terms of law operating at the time, terms to which you seem to want us to revert to, the presiding Judge would have had no discretion to withhold his signature from the consent decree, even if he was aware that the whole agreement stemmed from a bribe to someone at Justice or the White House. You complain of a 2 player game, but when the DOJ and the defendant are colluding and the Judge can't do anything about it, it becomes a ONE player game. That is the injustice Tunney was designed to end. The Tunney amendment was therefore proposed, adopted and signed into law to prevent the presiding Judge in antitrust cases from being used as a rubber stamp by a corrupt or negligent executive. What are the requirements of Tunney?
Tunney requires DOJ to solicit comment from any person at all with an argument to make about the public interest impact of the proposed settlement. These comments must be made part of the public record; the district Judge can ask DOJ to answer issues raised by these comments. (What has happened today is that the DOJ and MS have filed an amended settlement proposal in response to the Tunney comments, as directed by Judge K. - so you see, Tunney comments are not and never have been just a "chance for those outside somebodies to howl")
Tunney requires that the DOj include a thorough defense in the Competitive Impact Statement of the features of their proposed settlement- why these specifically were chosen as opposed to other possible remedies.
Tunney requires full disclosure of all contacts between the defendant and its agents and officials of the Federal government. So in the case of IT&T the contact between the defendant and the Nixon White House would have been known to the Judge and the public before the settlement was entered instead of coming to light later. Likewise, full disclosure in Microsoft's case would mean a detailed account of the contacts made by their lobbyists like Vin Weber (former representative) Haley Barbour (who I assume needs no introduction) and Boyden Gray (former Whitehouse counsel to George H. W. Bush), including who they talked to and what they said. Also, Microsoft would have to declare the meeting between Dick Cheney and Steve Ballmer and provide details on what was said.
Tunney also requires that DOJ make available to anyone all "determinative documents" --that is internal memos, findings, notes passed in class, etc-- that bear on its decision to settle and on any of the particular features of the proposal. (Sporkin wanted details about the government's discussions with MS, too, under these "determinative document" terms, to discover how they decided to concede key points to Microsoft. This was found to be insufferable overreaching by the COA but, in hindsight there could be no better determinative document for discovering how DOJ came to agree with MS that WindowsNT fell outside the relevant market, a concession even the DC COA found questionable.)
Now these are the minimal requirements of the Tunney Act and as you can see all of them intend to scrutinize the DOJ and to make DOJ accountable whenever they decide to settle antitrust cases. The Judge is empowered by Tunney to withhold signature from any proposed settlement between DOJ and the defendant when these minimal requirements have not been met in a good faith manner in his or her opinion, or are refused or ignored by the DOJ and defendant.
Furthermore, Tunney empowers the district court judge to withhold signature for even broader reasons, when the proposed settlement appears to him to be beyond the pale of the public interest (like say, the consent decree was a toothless sham or so ambiguous as to be unenforceable). In general the "public interest" considerations favor meeting the stated goals of antitrust law like the Sherman Antitrust Act's provision that any ill-gotten gains be stripped from the offender, that the remedy be adequate to deter and make impractical future violations by the defendant, or that past damage by the defendant be undone by the remedy. These are all provisions mentioned in the ratifying debate in the Senate with clear examples given, and are understood clearly to be grounds on which a district court may refuse -with Tunney's "public interest" language as its justification- to enter a consent decree between DOJ and a putative monopolist. This power is essentially a complex "sniff test" administered by the Judge: if the proposed settlement probably makes the situation better, it passes and he signs off; if it does nothing or probably makes things worse, or he suspects the DOJ hasn't leveled with him, it may fail the Judge's sniff test. It doesn't give the Judge the power to hold out for the best possible solution imaginable; but it does afford him the power to refrain if the net result appears most likely to produce a worse situation than before or an unchanged problem. The existence of the discretionary power of the district Judge to look out for the public interest when presented with a DOJ / defendant settlement proposalwas also understood by DC COurt of Appeals even as they overturned Sporkin, and referred to the "rather broad" sweep of discretionary powers granted to the Judge by the Tunney Act.
In the opinion of the DC Court of Appeals: "When the government and a putative defendant present a proposed consent decree to a district court for review under the Tunney Act, the court can and should inquire, in the manner we have described, into the
purpose, meaning, and efficacy of the decree. If the decree is ambiguous, or the district judge can foresee difficulties in implementation, we would expect the court to insist that these matters be attended to. And, certainly, if third parties contend that they would be positively injured by the decree, a district judge might well hesitate before assuming that the decree is appropriate.....A decree, even entered as a pretrial settlement, is a judicial act, and therefore the district judge is not obliged to accept one that, on its face and even after government explanation, appears to make a mockery of judicial power."
Now those are the broad parameters of the Tunney Act, but of course in practice everything can be different. In practice, the DC Circuit Court of Appeals has never met an excuse for not following and for disrespecting Tunney Act that they didn't like. They admit it is Law, but they seemingly refuse to find anywhere to apply it.
Where the COA reamed Sporkin specifically was, as I've said, where he veered too close to demanding an legal action that exceeded the claims made and substantiated by DOJ. And they reamed him over the fact that there had been no trial with findings for him to hang onto as his justication. Appeals courts have traditionally insisted on a much greater degree of deference from the Judge to the judgement of the Justice Dept. when there is a proposed settlement without a trial, than when a trial preceded the proposal. The fact that there hadn't been a trial yet was not Sporkin's fault of course but it limited his power to review the proposal more than he guessed. Despite pertinent and valid objections raised to the settlement by the anonymous Amici lawyers, the Court of Appeals would shoot most of them down by simply saying in effect Sporkin should have deferred to DOJ on this. It is hard to argue against them where they simply blow off Sporkin with circular arguments to the effect that he have deferred. However, no one should ever forget how badly the Court of Appeals misjudged matters in the critical question of the ambiguity of the proposed settlement. The one objection they did find potentially valid was the contention by Amici that the proposal was unacceptably ambiguous because there was no understanding between DOJ and MS about the binding power of their agreement over successor operating systems, like WindowsNT. The COA could not deny that this Tunney objection was for real, but they decided that the appellant's answer was trustworthy: WindowsNT would never be positioned as a successor system in the relevant market of desktop operating systems, dominated by the DOS family at the time. Amici had alleged that such was indeed likely and so the ambiguity was disqualifying. DC COA allowed that it would be disqualifying but said it would not be a problem: Microsoft and DOJ vouched that NT would always be a specialist's os with neglible marketshare. Of course, the ink wasn't dry on their decision before we all knew what bullshit that was. Microsoft maybe wasn't telling the government that the NT kernel was the successor to Windows3.1 and Chicago but they weren't shy about telling developers. That tells the truer story about Who was Really Biased and in the direction of Whom. COA was like the Simpson jury looking for any and every excuse to let a sympathetic defendant go: they chose to believe the defendant's lies even when they were ludicrous. Microsoft's rapid turnabout and defiance on this point gives a lot of credibility to Sporkin' objection that the proposal didn't begin to address the need for assured compliance mechanisms and provisions for compliance supervisors. But of course he should have deferred to the wisdom of DOJ.
Was Sporkin at fault for insisting that DOJ treat the possibility of preventing Microsoft's use of preannouncements in maintaining their monopoly ? Sure, he asked for it. He opened himself to attack and was reversed. He had valid minimum requirement objections but this point and his lack of deference could be used to portray a "Judge out of Control" But his reversal in no way ties the hands of a subsequent Judge like Jackson or Judge K. : there has been a trial, there are now Findings of Fact, most of which have been upheld unanimously by the COA itself. For this reason the district Judge is not commanded by precedent to defer to DOJ on any and every point of minimal Tunney Act compliance. According to that law the Judge now has substantial discretion to ensure that any settlement actually achieves pro-competitive goals as set forth in the older canonical Antitrust Acts. And if Judge K. decides that half of the States and the preponderance of the Tunney comments have given her substantial reason to believe that the proposed settlement is still unenforceable and, all things considered, not in the public interest then the DOJ and appellate will have to play along, or play her out. In theory, as long as she sticks strictly to remedying abuses enumerated in the FOF and relates those to broad Antitrust objectives, she could make DOJ and MS come back again and again until they finally coughed up a real set of remedies. But in practice it's not going to be that simple, and probably won't happen --can't happen even if she was really inclined to get a credible remedy. If she doesn't capitulate soon, she'll have real hell to pay. The Tunney Act was intended to get politics out of antitrust enforcement, but the DC COA have managed to put it back in by reaming Sporkin the way they did. They have created an atmosphere and expectation of mindless kowtowing from Judges towards the DOJ no matter how corrupt or negligent the department may be. If Judge K. doesn't find the settlement in the public interest and sticks to her guns, the rabid fringe will be all over cable TV screaming about bias and how she's a runaway Judge out of control yadda yadda and so on, with the net effect that all Microsoft and DOJ have to do to break her down is to keep submitting the same bad settlement proposals with newly positioned commas.
It would be so much more honest of them, and maybe you too, if they simply let the world know that deep down THEY DON'T LIKE the Tunney Act --never have-- and went on to declare open war on its Constitutionality. Let's hope they have the honesty to admit they hate it and also the honesty to admit what kind of abuses antitrust enforcement will experience again if they succeed in abolishing it. That probably wouldn't be their way, however. Some courts act mostly in the nuances, some prefer to act in the shadows.
Slashdot Mirror
That's really not a great position to be in, is it Andy?
I mean, they bought the workstations from fucking Dell but obviously Dell tech support is in no position to aid them on the technology of the OS. Or anything beyond installing a ethernet driver or scanner on Windows, if even that. So about this time I am wondering
Pennywise so often is pound stupid.
First spinoff: Carly Fiorina. Who'll give me a plug nickel? Who'll give me a green stamp. Ladies and gentlemen the auction for this fine item of American corporate management expertise has begun and bidding starts at one S&H green stamp or 2 crackerjack boxtops ... what am I bid?
Full many a industrial giant could restore or ensure their longterm profitability with a similar move: spin off your upper management as a crack consultation firm. Or a shroom consultation firm --whatever their hallucinations most closely resemble.
HP repent.
Because it doesn't exist? And maybe these helpful Finns could supply one porting the same OpenOffice source they're using to release modified X86 versions for windows and linux?
That could be why.
The site is mirrored at
www.pleabargainingisthewayout.com
and
www.whe
Speaking of sleepytime, Bill has asked me to say
"Will the last person to leave wecantfindthewayout.com please shut off the lights?"
Thank You.
To make globalism work, we need to give people control, including the power to move around the world as easily as corporations and capital.
Doesn't this seem
Globalism is working exactly as designed. Away from control of mere people. On a plane of existence blissfully ignoring the civilized legal traditions of sovereignty and democracy.
There is no Globalism in existence apart from the physical actions, words and plans of individuals and factions promoting and enacting globalization of world capital, labor and commodity markets.
It's an utter hallucination to speak of some pure " -ism" or some flawless ideal of globalism floating in a Platonic dimension of forms, that is beneficial and tender hearted intending the betterment of all mankind blah blah blah....
It is a trick of language producing a mirage upon the surface of the mind.
It does not exist.
What exists is the globalization we have experienced. What we have seen. Past things we can discover through documents. Bank records. Confessions.
There is no other globalization to talk about.
You say the United States government "confuses" globalization with their fuzzy headed, baser impulses towards some new kind of imperialism...
Well Pilgrim, they INVENTED and originated this globlization, and to make it live up to its global, planetwide attribute, they ENFORCE it with World Trade Organizations, International Monetary Fund "austerity" plans and, the US Navy 6th and 7th fleets, and USAF intercontinental bombers.
If there is a disagreement between your version of globalism and theirs - who wins?
If your idea of globalism challenges theirs it will wither beneath real napalm, real cluster bombs, real cruise missiles.
They are not confused. They are not in doubt when they deploy these things in pursuit of globalization.
They know what the pure project of globalization is, thank you very much - and they are pursuing it.
All you and I have to do is to insure it through tax funded government bailouts of wayward insolvent banks, and to fight and die for globalization, waving our country's flag.
Same deal as before with Britain and other powers in the 1800s.
If we are to discuss the true essence of this entity, globalism, whose version of globalism are we to prefer? Your made up idea or their daily practice? It is utterly ridiculous to speak of globalism's "essence", like it was some kind of ghost standing in back of the globalism we can actually see with our eyes, an angel of Globaliszation's better nature, watching and hoping mortal, corporeal globalism will finally straighten up and "do right".
There is no essence, only practice.
So it is their globalism, their Corporate-Imperialist version of it that owns the word. The globalism of the doers, the takers and the schemers, those actually implementing and enriching themselves by globalization: THAT has positive existence; the globalization of the dreamers and the idealists is less substantial than a fart in the wind.
We must talk about it as it is.
Arab radio stations may have this or that 30 years ago -or today, but it remains the truth that only Israel attacked US military personnel during the `67 war.
I refer to the USS Liberty "incident" in which Israeli planes rocketted napalmed and strafed a Navy e-lint trawler which was prominently marked and flagged as a USN vessel in international waters. Israeli helicopters and torpedo boats torpedoed the Liberty, machinegunned her decks and even shot up the life rafts full of US sailors, causing over the deaths of over 30 American seamen and the wounding of over 150 more.
But hey, they've forgotten about little bygones like that at National Review almost as soon as they happened.
Cuz they're so darn patriotic.
http://www.ussliberty.org/
http://www.washingt
(BTW: Ann Coulter formerly of National Review and other gutter publications, said in her column that we should invade all Muslim countries, kill all their leaders and force all their people to convert to Christianity. This level of homicidal psychotic ranting was a little de trop for even National Review, and they let her go. Shall the world judge the United States and its people based solely on the insane rantings of Ann Coulter, Rush Limbaugh, and the other uncaged loonies? You may not like the result once it starts, so have a care how you judge others.)
They rewrote a damn sight more to move video drivers into the kernel, making NT less stable between 3.5 and 4.0
You know, usually, when you're found guilty of breaking the law you are required at minimum to change your ways a bit. But I realize we're talking about Microsoft.
Ah yes, the you-can't-punish-me-it-might-hurt defense.
I hope the judge is equally familiar with the ancient Anglo-Saxon legal concept of "tough shit" and its corollary, "shoulddathoughtofthat".
(So do Microsoft get three strikes before they incur the ultimate & everlasting sentence and where do we start counting? Stacker? Bristol? Dr-DOS?)
My genes make me a GUI guru.
Now hear my whine(s).
If I had to use Keramik it would drive me crazy with its hyped contrasts. (I haven't used the original OSX aqua for more than a couple of minutes so I couldn't say whether it was just as bad.)
That second screenshot is right down there knocking on the door of ugly. The way the darker blue is used inside of the lighter frame is just wrong. Maybe if I could control the ratio of one value to the other I could live with a monochromatic scheme inverted like that, but the way they did it and those title bars? Unh-uh.
In all the screenshots of Liquid that I have seen , the nice color gradients could not hide that perennial KDE theme atrocity: discrete little button surrounds for every icon in the toolbar, with all the buttons jammed hard together to the left.
Ugh. This one is the vomit-maker. Thankfully the button boxes aren't part of the default KDE theme, but they seem hard to avoid when you leave the default KDE theme. Half of the themes have this eyesore of a billion little outlined buttons in the toolbar.
Many a Gnome theme and app has the same problem. Look at Bluefish using something like a GTK aqua theme. Incompre-fucking-hensible.
The law this violates is called Tandy's Paradox: the human eye/brain apparatus follows lines unconsciouly -autonomically. Therefore, the more you as a GUI designer try to set off adjacent things with little bounding lines , and especially lines that change direction making angles and closed figures, the more busy and less clear things actually become, unless: a) The closed figures are few in number and large; or b) the closed figures are set off with a grid of spaces that give a pleasing interval of figure to ground allowing the eye to stop, offsetting the busyness (but wasting screen real estate in the process and requiring more code).
Legibility is not a matter of taste.
Try to use as few lines and separate 3d modelled surfaces as humanly possible in your GUI, then eliminate 50% of those remaining. Now you're right.
Well I think that's enough for today.
Making 1680K floppies shouldn't be a problem for anyone. There are Windows tools that format the floppy and copy the image file in one go for those lacking UNIX skills. The other "difficulty" of floppies over the usual 1440K size is quality. Bad quality floppies will frequently fail to format at 1680 but all modern controllers BIOSes and floppy drives will handle 1680, even MSDOS understands it without trickery. I say bad quality floppies because experience tells me that these are the same brands that develop errors early on when left in 1440K format. If you're using floppies that often fail to format 1680K they are going to bite you in the ass at 1440K within a short while anyway, which is not desirable for a router or other embedded appliance type UNIX server. It's best to replace a batch of bad floppies than cherry pick the good ones from a batch of low quality diskettes and hope they will last.
Well, actually the 2.2 series kernel is very much alive and maintained. There are plenty of Linux floppy distros that are keeping up with revisions of the 2.2 kernel. If you visit their pages, as on leaf.sourceforge.net you can see that they are also responding to security concerns in secondary packages, like libz and openssh.
No stateful firewalling for you.
If you absolutely need stateful packet filtering you can use Bering, a floppy firewall based on Linux kernel series 2.4
In fact, there are tons and tons of dead single-floppy Linux distros... whatever.
Which is just what you would expect to see anywhere in free unix where there is abundant life and tons and tons of open projects. It's an ecology.
I am glad to see ClosedBSD. A few days ago was the first time I read that name anywhere and I didn't get an idea of what the project was about. I won't rag on the limited package options for CLosedBSD since it's clear that they're just starting out.
I think all the current single-floppy distros suck (Linux or BSD).
I have to disagree. Sometimes you have to look on the bright side. Our options are great compared to Microsoft-only users. There are floppy routers based on DOS (I think) but that is a technologically stunted backwater of the MS world and there's nothing the open or closed projects for DOS firewalls can do to improve that situation. We have many vital projects that are able to make use of the best possibilities of the IA32 architecture, a wide range of configuration choices including hybrid CDROM/Floppy distros, multifloppy distros, wireless gateway distros, options for all kinds of services -not just routing- and we have large user support communities. Working with floppies is never going to be painless but really with all the choice, flexibility and support that's out there, these are the good old days.
Instead of starting a whole new floppy UNIX why not join ClosedBSD as a contributor? The best Linux-on-Floppy distros are ones that attract lots of contributors and people offering specialized versions of the main tree.
I've looked into Pico BSD and the subject of floppy based BSD off and on for a couple of years. There's nothing going on there -or last I looked it was still dead.
Pico BSD is a defunct project and there were no surviving offspring. It's not being maintained, as the downloadable images all date from 1998. So it's unsafe in any setting you need a UNIX in, and pretty much useless unless you just get a thrill from loading a UNIX style OS from a bootable medium the rest of the world rememebers best as a vector for DOS viruses and typing 'ls' and marvelling at yourself. To handle and touch an OS this far fallen into decay and death has to be a kind of antiquarian's fetish. Before you sit down to type at the console, you should be sure to put on some harpsichord music and your favorite mauve satin smoking jacket. Atop your monitor should stand a seven armed silver candelabra and the room should be dark and cold as a tomb. Use a Ouija board to generate passwords.
Then my heart it grew ashen and sober
As the leaves that were crisped and sere -
As the leaves that were withering and sere;
And I cried: "It was surely October
On this very night of last year
That I journeyed -I journeyed down here! -
That I brought a dread burden down here -
On this night of all nights in the year,
Ah, what demon hath tempted me here?
Well I know, now, this dim lake of Auber -
This misty mid region of Weir -
Well I know, now, this dank tarn of Auber,
This ghoul-haunted woodland of Weir."
I've checked for a floppy version of OpenBSD. Mr. De Raadt has expressed an unwillingness for OBSD to be floppyized. Some people were talking about it anyway but there was nothing going on, nothing to use. Since you are into BSD and haven't mentioned it I will assume that the floppy based Open BSD is still sharing a bunk with OBSD
With Linux on the other hand there are a number of robust open projects and commercial products that answer to the description of "floppy based UNIX router, that is actively maintained". I don't have to imagine them as still living, and harangue strangers about not forgetting them. They manage to attract a fair amount of attention to themselves without strident evangelizing.
Proving that the sphere of their gross incompetence is not restricted to cars and trucks alone.
who cares. Do you think Microsoft's bribes to their CIO can make up for the lost revenue not being visible to 30 million AOL subscribers? I doubt it , but then again I couldn't care less if they can accurately calculate their interests or not. Same goes for the other 1450 fuckwits.
Mozillans: Tranquility Base here, the LIZARD HAS LANDED.
Yeah except that you forgot Blender was just as much a Windows app (if not more so - hw acceleration was an afterthought for the Linux version).
Let's hear you praise the generosity of the Windows crowd and damn Linux users again. Go ahead.
Now as for whether NaN merited money from either the Linux or Windows community, you seem to take this for granted, but I'll say this: I've never seen a "professional" graphics application of any kind without a fucking UNDO function, mapped to CTRL-Z or somewhere else. Everytime I downloaded Blender there was no undo. That was true at least for a couple of years and still true until fairly recently as far as I know.
I won't blame anybody for saying that they found Blender a bitch to learn. I agree. I won't blame them for concluding it was not worth the effort to learn: Ctrl-Z is the most frequently used function of any kind of graphics app for new users. Blender ignored this and all the off-putting effects it has on new users. Who was the market for this app? Not 3d professionals who either have borrowed copies of what they use at work, or self-purchased copies. Newbies were the main market. Hobbyists. Blender asked for their money, but they might have done better if they had kept new users completely in the dark about the app's useability problems by offering no free download, and no trial period. Most people don't have the patience to learn a 3d app UI in the first place, Blender was after the market segment least likely to have a reason to adapt to a complex interface, and frankly they behaved in a cavalier manner in attracting their business.
Sorry.
I'm sorry to see them go, but they didn't earn my money. I expect I gave them more of a chance than most people would
Am I the only one who sees how poisonous this attitude is?
No, but I bet you got the first dibs on being Grand Inquisitor.
Normally you have to deal with professional politicians to see that level of shortsightedness and arrogance.
Arrogance ?
How about the arrogance of judging others you've never even met? Some would say singling out a group of people to carry the blame of others, calling them "cheapskates" "pathological" "poisonous" and "shortsighted" in the process is a maybe wee bit arrogant itself.
No no no. Extrude wasn't the innovation, not being able to undo the extrude was the unique innovation of Blender.
Gecko's status really doesn't have any impact on that change unless v1.0-Day for Mozilla has some sort of anti-MS voodoo significance. Even then, it's still more effective I'm told to sacrifice a black rooster to Papa Legba on Bill Gates' birthday, but I guess every little bit helps.
Why the hell would AOL buy Redhat when they can redistribute/install branded versions of the Linux OS for cheap or free?
Redhat is a business supporting Linux for other businesses. They put a brand name on commodity software, mostly free stuff floating about the
This is not AOL's sphere of banditry at all. People do not look to AOL for support services in any area of software, and AOL market exclusively to consumers, not businesses. Surely AOL management understands that Redhat's business does not fit in theirs, is not congruent nor complemetary.
AOL has scooped up quite a number of smaller companies whose products are used to acessorize the AOL client and to make it look like AOL invented the internet to a gullible public. In what way would owning Redhat fit that pattern and further that image? Unlike Nullsoft or Mirabilis Redhat makes nothing that helps children and grandmas share pr0n or stolen music or impress each other with the fact that they are so computer literate they can actually chat online. Redhat complements the AOL client and impresses the AOL installed base in no way.
AOL buying Redhat would possibly be the death of Redhat longterm since many talented people would leave, and it constitutes no advantage to AOL marketing in the shortterm.
I agree with posters below who say that AOL could market a internet appliance and web services accessed with the appliance and that they could do it with Linux. (They would need to BRAND the thing themselves, not under a partner 's name like they did before with Gateway, and they'd have to advertize it on TV) But actually owning Redhat Software outright is not a prerequisite for success with what is basically a hardware venture, and since a takeover by AOL would probably weaken Redhat instead of strengthen them, it would be a huge waste of money to acquire what they can already get much more cheaply. AOL farming support contracts for Linux webterminals to Redhat is a viable ecology; AOL buying Redhat is death by smothering for Redhat and a selfdefeating investment for AOL.
You know if Mozilla is sending data to AOL or not by sniffing for it with tcpdump or ethereal, etc.
No funny packets? Don't bother sifting the source if you're not already involved.
Remember when that settlement was proposed: 1994.
There was no windows95 yet. Clinton had been President for about one year. Not exactly footdragging on the part of his DOJ.
Some of the complaints heard in the subsequent trial had not even happened yet. For that matter Microsoft was not yet the colossus they are today overshadowing almost every industry.
But more importantly the industry was not yet willing to cross MS and bring specific allegations against them in a courtroom. This is key. You cannot have prosecution of a monopolist without the supporting testimony of its victims. We are all MS' victims, yes, but most of us don't know anything that isn't hearsay. You need the testimony of the ISVs and PC OEMS as well as industry competitors. People have to get up on the stand and say Mr Smith of MS met with with me in my office on June4 1996 and said clearly to me: "You will crosslicense your technology to MS in exchange for knowledge of the blahblah interface or we will see to it that no OEM ever bundles your application and that it will never run correctly on Windows" Things like that. In 1994,the participation of other computer industry companies in the Tunney phase of the initial proposal was limited to an anonymous Amicus brief. It's difficult to convict someone of a crime when the witnesses won't come forward to tell their stories. The Amicus brief preserved the anonymity of the Doe companies and dealt with general problems with the proposed settlement --why its provisions were inadequate to restrain MS and why it was unenforceably ambiguous-- shying away from specifics about MS armtwisting. In 1994 they just weren't yet willing to talk. By 1998, some of them were. In between, the policies of these companies was to avoid any conflict with MS, or in the case of the top tier PC makers, to actually defend MS in public comments by their CEOs, at MS love-ins, Congressional hearings, etc. Also in between 94 and 98 the first settlement was denied, the denial was appealed the settlement was kicked to Judge Jackson for signature, Jackson then tried to oversee implementation of the settlement and eventually found MS in contempt of the terms, then he was reversed by the DC Court of Appeals, and eventually the whole settlement thrown out by them. It may appear to someone without knowledge of the case timeline that nothing much was happening from the time of the initial settlement to the time of the new antitrust action, but that's mainly due the slowness of appeals processes. The settlement hadn't been in place long at all when Judge Jackson found MS in contempt of it for tying IE to Windows98. But you have appeals on either side of that interval. The Clinton DOJ acted early, but in a twist of fate they might have acted with greater result had they waited until after windows95 came out to launch the suit. The climate in the industry changed and they would have gotten much more support from witnesses. But who could have predicted that?
When the DC Appeals Court threw the first settlement out, the Clinton DOJ swiftly began a whole new antitrust action against Microsoft which they prosecuted vigorously I think you will have to admit, winning their case and leaving the successor administration with a very strong hand going into the present rounds of appeal and settlement.
If the new administration chooses to throw that strength away and negotiate a toothless settlement as they announced they would with the tobacco companies, that's hardly the fault of Janet Reno or Bill Clinton. Except of course I forget that it's always Bill Clinton's fault; for he is the Anti-Christ.
If you're looking for a villain for the strange run of good luck that MS had against the government in court during the 90s, you might turn a skeptical eye towards the DC Court of Appeals. They are the hand that has actually set Microsoft free to pillage the world not once but at least 3 times now. And they stand ready to do so again, I'm sure, if MS and the Ashcroft DOJ complain to them that Judge Kollar-Kotelly has demonstrated bias against guilty people.
They vacated Judge J's remedies and thus gave MS yet another chance to settle, this time with a new adminstration which almost certainly never would have brought an action against MS in the first place. ("My administration will always favor innovation over litigation" - G. W. Bush on the day of Judge Jackson's FInding of Fact,speaking to a room of investment bankers. "Micrsoft's monopoly has materially benefitted the consumer" Atty Charles James, Bush DOJ chief of antitrust division speaking on McNeil/Lehrer News Hour.
Wine -or Win4Lin server
it or not, the court has to accept that the DoJ represents the people of the Un
ited States.
Simply put (thanks) and simply false.
"A decree, even entered as a pretrial settlement, is a judicial act, and therefore the district judge is not obliged to accept one that, on its face and even after government explanation, appears to make a mockery of judicial power."
--DC Court of Appeals , US v Microsoft, 56 F.3d 1148 (The Reamage of Stanley Sporkin)
Apparently even the DC Circuit Court of Appeals disagrees with you, Artagel.
The originating premise of the Tunney Act (an amendment to the Clayton Antitrust Act), which is not an Executive order, nor an act of judicial fiat, but a law passed by Congress, is that sometimes, in antitrust matters, the Executive may fail to act in the public interest. Why solicit 60 days of comment from the public at large if the Justice Department is assumed to be the insuperable voice of the People? The whole thrust of Tunney's minimal requirements is to pour sunshine in on the decision making process used by DOJ when it decides to shortcircuit the working of antitrust litigation with a preremptory settlement with the defendant. Clearly it is time to remind ourselves why the Tunney Act exists in the first place.
In 1972 the Nixon DOJ announced a settlement with IT&T, a settlement which subsequently was discovered to have been the result of lobbying efforts by IT&T directly on the Nixon White House which in turn, influenced the preexisting antitrust prosecution of IT&T by the Justice Dept. Under the terms of law operating at the time, terms to which you seem to want us to revert to, the presiding Judge would have had no discretion to withhold his signature from the consent decree, even if he was aware that the whole agreement stemmed from a bribe to someone at Justice or the White House. You complain of a 2 player game, but when the DOJ and the defendant are colluding and the Judge can't do anything about it, it becomes a ONE player game. That is the injustice Tunney was designed to end. The Tunney amendment was therefore proposed, adopted and signed into law to prevent the presiding Judge in antitrust cases from being used as a rubber stamp by a corrupt or negligent executive. What are the requirements of Tunney?
Tunney requires DOJ to solicit comment from any person at all with an argument to make about the public interest impact of the proposed settlement. These comments must be made part of the public record; the district Judge can ask DOJ to answer issues raised by these comments.
(What has happened today is that the DOJ and MS have filed an amended settlement proposal in response to the Tunney comments, as directed by Judge K. - so you see, Tunney comments are not and never have been just a "chance for those outside somebodies to howl")
Tunney requires that the DOj include a thorough defense in the Competitive Impact Statement of the features of their proposed settlement- why these specifically were chosen as opposed to other possible remedies.
Tunney requires full disclosure of all contacts between the defendant and its agents and officials of the Federal government. So in the case of IT&T the contact between the defendant and the Nixon White House would have been known to the Judge and the public before the settlement was entered instead of coming to light
later. Likewise, full disclosure in Microsoft's case would mean a detailed account of the contacts made by their lobbyists like Vin Weber (former representative) Haley Barbour (who I assume needs no introduction) and Boyden Gray (former Whitehouse counsel to George H. W. Bush), including who they talked to and what they said. Also, Microsoft would have to declare the meeting between Dick Cheney and Steve Ballmer and provide details on what was said.
Tunney also requires that DOJ make available to anyone all "determinative documents" --that is internal memos, findings, notes passed in class, etc-- that bear on its decision to settle and on any of the particular features of the proposal. (Sporkin wanted details about the government's discussions with MS, too,
under these "determinative document" terms, to discover how they decided to concede key points to Microsoft. This was found to be insufferable overreaching by the COA but, in hindsight there could be no better determinative document for discovering how DOJ came to agree with MS that WindowsNT fell outside the relevant market, a concession even the DC COA found questionable.)
Now these are the minimal requirements of the Tunney Act and as you can see all of them intend to scrutinize the DOJ and to make DOJ accountable whenever they decide to settle antitrust cases. The Judge is empowered by Tunney to withhold signature from any proposed settlement between DOJ and the defendant when these minimal requirements have not been met in a good faith manner in his or her opinion, or are refused or ignored by the DOJ and defendant.
Furthermore, Tunney empowers the district court judge to withhold signature for even broader reasons, when the proposed settlement appears to him to be beyond the pale of the public interest (like say, the consent decree was a toothless sham or so ambiguous as to be unenforceable). In general the "public interest" considerations favor meeting the stated goals of antitrust law like the Sherman Antitrust Act's provision that any ill-gotten gains be stripped from the offender, that the remedy be adequate to deter and make impractical future violations by the defendant, or that past damage by the defendant be undone by the remedy. These are all provisions mentioned in the ratifying debate in the Senate with clear examples given, and are understood clearly to be grounds on which a district court may refuse -with Tunney's "public interest" language as its justification- to enter a consent decree between DOJ and a putative monopolist. This power is essentially a complex "sniff test" administered by the Judge: if the proposed settlement probably makes the situation better, it passes and he signs off; if it does nothing or probably makes things worse, or he suspects the DOJ hasn't leveled with him, it may fail the Judge's sniff test. It doesn't give the Judge the power to hold out for the best possible solution imaginable; but it does afford him the power to refrain if the net result appears most likely to produce a worse situation than before or an unchanged problem. The existence of the discretionary power of the district Judge to look out for the public interest when presented with a DOJ / defendant settlement proposalwas also understood by DC COurt of Appeals even as they overturned Sporkin, and referred to the "rather broad" sweep of discretionary powers granted to the Judge by the Tunney Act.
....A decree, even entered as a pretrial settlement, is a judicial act, and therefore the district judge is not obliged to accept one that, on its face and even after government explanation, appears to make a mockery of judicial power."
In the opinion of the DC Court of Appeals:
"When the government and a putative defendant present a proposed consent decree
to a district court for review under the Tunney
Act, the court can and should inquire, in the manner we have described, into the
purpose, meaning, and efficacy of the decree. If
the decree is ambiguous, or the district judge can foresee difficulties in implementation, we would expect the court to insist that these matters be attended to. And, certainly, if third parties contend that they would be positively injured by the decree, a district judge might well hesitate before assuming that the decree is appropriate.
Now those are the broad parameters of the Tunney Act, but of course in practice everything can be different. In practice, the DC Circuit Court of Appeals has never met an excuse for not following and for disrespecting Tunney Act that they didn't like. They admit it is Law, but they seemingly refuse to find anywhere to apply it.
Where the COA reamed Sporkin specifically was, as I've said, where he veered too close to demanding an legal action that exceeded the claims made and substantiated by DOJ. And they reamed him over the fact that there had been no trial with findings for him to hang onto as his justication. Appeals courts have traditionally insisted on a much greater degree of deference from the Judge to the judgement of the Justice Dept. when there is a proposed settlement without a trial, than when a trial preceded the proposal. The fact that there hadn't been a trial yet was not Sporkin's fault of course but it limited his power to review the proposal more than he guessed. Despite pertinent and valid objections raised to the settlement by the anonymous Amici lawyers, the Court of Appeals would shoot most of them down by simply saying in effect Sporkin should have deferred to DOJ on this. It is hard to argue against them where they simply blow off Sporkin with circular arguments to the effect that he have deferred. However, no one should ever forget how badly the Court of Appeals misjudged matters in the critical question of the ambiguity of the proposed settlement. The one objection they did find potentially valid was the contention by Amici that the proposal was unacceptably ambiguous because there was no understanding between DOJ and MS about the binding power of their agreement over successor operating systems, like WindowsNT. The COA could not deny that this Tunney objection was for real, but they decided that the appellant's answer was trustworthy: WindowsNT would never be positioned as a successor system in the relevant market of desktop operating systems, dominated by the DOS family at the time. Amici had alleged that such was indeed likely and so the ambiguity was disqualifying. DC COA allowed that it would be disqualifying but said it would not be a problem: Microsoft and DOJ vouched that NT would always be a specialist's os with neglible marketshare. Of course, the ink wasn't dry on their decision before we all knew what bullshit that was. Microsoft maybe wasn't telling the government that the NT kernel was the successor to Windows3.1 and Chicago but they weren't shy about telling developers. That tells the truer story about Who was Really Biased and in the direction of Whom. COA was like the Simpson jury looking for any and every excuse to let a sympathetic defendant go: they chose to believe the defendant's lies even when they were ludicrous. Microsoft's rapid turnabout and defiance on this point gives a lot of credibility to Sporkin' objection that the proposal didn't begin to address the need for assured compliance mechanisms and provisions for compliance supervisors. But of course he should have deferred to the wisdom of DOJ.
Was Sporkin at fault for insisting that DOJ treat the possibility of preventing Microsoft's use of preannouncements in maintaining their monopoly ? Sure, he asked for it. He opened himself to attack and was reversed. He had valid minimum requirement objections but this point and his lack of deference could be used to portray a "Judge out of Control" But his reversal in no way ties the hands of a subsequent Judge like Jackson or Judge K. : there has been a trial, there are now Findings of Fact, most of which have been upheld unanimously by the COA itself. For this reason the district Judge is not commanded by precedent to defer to DOJ on any and every point of minimal Tunney Act compliance. According to that law the Judge now has substantial discretion to ensure that any settlement actually achieves pro-competitive goals as set forth in the older canonical Antitrust Acts. And if Judge K. decides that half of the States and the preponderance of the Tunney comments have given her substantial reason to believe that the proposed settlement is still unenforceable and, all things considered, not in the public interest then the DOJ and appellate will have to play along, or play her out. In theory, as long as she sticks strictly to remedying abuses enumerated in the FOF and relates those to broad Antitrust objectives, she could make DOJ and MS come back again and again until they finally coughed up a real set of remedies. But in practice it's not going to be that simple, and probably won't happen --can't happen even if she was really inclined to get a credible remedy. If she doesn't capitulate soon, she'll have real hell to pay. The Tunney Act was intended to get politics out of antitrust enforcement, but the DC COA have managed to put it back in by reaming Sporkin the way they did. They have created an atmosphere and expectation of mindless kowtowing from Judges towards the DOJ no matter how corrupt or negligent the department may be. If Judge K. doesn't find the settlement in the public interest and sticks to her guns, the rabid fringe will be all over cable TV screaming about bias and how she's a runaway Judge out of control yadda yadda and so on, with the net effect that all Microsoft and DOJ have to do to break her down is to keep submitting the same bad settlement proposals with newly positioned commas.
It would be so much more honest of them, and maybe you too, if they simply let the world know that deep down THEY DON'T LIKE the Tunney Act --never have-- and went on to declare open war on its Constitutionality. Let's hope they have the honesty to admit they hate it and also the honesty to admit what kind of abuses antitrust enforcement will experience again if they succeed in abolishing it. That probably wouldn't be their way, however. Some courts act mostly in the nuances, some prefer to act in the shadows.