Microsoft to stay one company?
June 28, 2001 9:02 AM   Subscribe

Microsoft to stay one company? Appeals say Microsoft to stay a behemoth. I think Clippy is here to stay.
posted by dwivian (28 comments total)
Want evidence that the justice system is screwed up by other interests? This is one, and this is another.

Ridiculous stuff.
posted by hijinx at 9:07 AM on June 28, 2001

quel suprise!

What happens next? Exxon absolved of responsibility in Prince William Sound oil spill?
posted by BoyWithFez at 9:18 AM on June 28, 2001

For a moment at least, my faith in the USA and in justice has been restored. Thank you United States Court of Appeals.
posted by mw at 9:20 AM on June 28, 2001

This ruling really doesn't mean that much. What basically happened is that the Appeals Court ruled that Judge Jackson was completely biased, and thus his ruling is not trustworthy. They threw it back to a lower court, and it's entirely possible that a different judge could come to the exact same conclusion. It'll probably take a couple years, though.

Note to anticapitalist ideologues: The ruling was 7-0, and they don't appear to have made any ruling about the actual merits of the case.
posted by aaron at 9:27 AM on June 28, 2001

The decision's sort of moot anyway. Judge Jackson made a rod for his own back with the tone of his judgement; the life went out of the plaintiff's case during the appeals process when Bush entered the White House.
posted by holgate at 9:28 AM on June 28, 2001

Oh, snap.

But yes, aaron's right: this is just going to drag on in a different court to the one it would have dragged on in, had the appeal failed. (Ugh, grammar.) The Microsoft behemoth isn't going to be challenged by the courts: better just to avoid its crappy products.
posted by holgate at 9:31 AM on June 28, 2001

anti-trust laws are bogus - how about them going after some real anti-trust violators like the local phone company monopolies? Or electrical companies - sheez, PG&E is rapin Californians on electrical prices and all they do is bitch and moan.
posted by Zebulun at 10:01 AM on June 28, 2001

Another link.

The court also handed Microsoft a smaller victory by reversing one finding by Jackson that its packaging of its Web browser and operating system violated antitrust law.

The judges said the government, in the new phase of the trial, would have to show that Microsoft "unreasonably restrained competition'' with that action.

Let's see... if you have 90%+ of the OS marketshare and you integrate your browser into your OS and you make other browsers run like hell on it, that sounds a lot like unreasonable restraint to me.
posted by goto11 at 10:05 AM on June 28, 2001

if you have 90%+ of the OS marketshare and you integrate your browser into your OS and you make other browsers run like hell on it

Netscape is perfectly capable of making their browser "run like hell" without Microsoft's help, it seems...
posted by kindall at 10:07 AM on June 28, 2001

I was pointed to the AOL poll on this subject (in the AOL proprietary content) that had 82% of those filling in the poll stating they agreed with the outcome of the case today and nearly the same amount saying the Federal Courts should do nothing more.
posted by vanderwal at 10:09 AM on June 28, 2001

kindall -- Windows Media Player (WiMP) 7 locks up my Win ME OS only when I have an MS IE 5+ browser running. If I run Mozilla no problems. This is just very strange.
posted by vanderwal at 10:12 AM on June 28, 2001

I take back all my snide comments about AOL users.
posted by mw at 10:12 AM on June 28, 2001

You're right, because an AOL poll is scienfically accurate, and not clogged by ejaculating Objectivists.
posted by solistrato at 10:24 AM on June 28, 2001

This should be read as an indictment of the ethics of the justices sitting on the DC Court of Appeals. In normal situations, only 3 judges will hear an appeal. These 7 bozos raised themselves up on their furry little hind feet and scurried to make sure they would get another chance to bash Jackson.

Remember their haste to declare that they would hear the case, even before the Supremes had turned down the fasttrack? I wonder how Gates entered that in his checkbook.

Jackson didn't screw the pooch with his comments about Microsoft; it was his remarks about the "wrongheaded" reversal by this appeals court of previous decisions that did the trick. These seven pustules tried Jackson, not the case before them. (Granted that Microsoft's main argument in the appeal was that the mean old judge had picked on them, but you expect at least one of them would recognize a sack of shit as a sack of shit.)
posted by joaquim at 10:37 AM on June 28, 2001

It's worth noting that the judgement itself, as Dave Winer points out, validates many of Jackson's findings of law: that MSFT violated the Sherman Act in its OEM licensing, in its ISP contracts, its deal over Mac Office and with Java developers, and in aspects of IE's integration with Windows (ie the whole 'crippling Windows' thing, which was shown up by the maker of 98lite.)

So Bill ain't out of the woods yet. But I'm guessing that the choice of judge for the re-hearing is going to be as contentious as jury selection at the OJ trial.
posted by holgate at 11:05 AM on June 28, 2001

Granted that Microsoft's main argument in the appeal was that the mean old judge had picked on them, but you expect at least one of them would recognize a sack of shit as a sack of shit.

But, of course, joaquim, it couldn't possibly be that, in fact, the mean old judge had picked on them, right? And that the seven justices of the DC Court of Appeals - who are, one would assume, relatively well versed in what constitutes being "picked on" from a legal standpoint - merely recognized that Jackson had behaved in a manner so out of whack with impartiality that even a layperson (that would be me, in this context) could see that Jackson had stuck a needle in his own hot-air balloon, right?
posted by m.polo at 11:07 AM on June 28, 2001

Someone enlighten me: how does MSFT's bundling of browser with other MS products rate as "anti-competitive" or otherwise hurt competing software companies??? I'm on MSFT's side in this, no surprise there, but I am genuinely perplexed as to the reasoning behind the "bundling" argument against Gates & Co. Can't any other company include as many (or few) software titles/programs in their own releases?

posted by davidmsc at 1:51 PM on June 28, 2001

not clogged by ejaculating Objectivists

damn i hate technology. here i just brought home my brand new Objectivist and now I learn they've come out with an ejaculating model.
posted by quonsar at 1:56 PM on June 28, 2001

Bill's certainly happy.
posted by ed at 3:06 PM on June 28, 2001

Holgate's right on. The media initially focused on the remanding of the remedies back to the lower courts. But look at what they upheld: Maintaining an operating system monopoly? GUILTY. Microsoft's actions in integrating Internet Explorer with Windows violating antitrust laws? GUILTY. Using its monopoly powers to exclude competitors? GUILTY. Illegal exclusive contracts with PC vendors and Internet service providers? GUILTY. Illegal business tactics in dealing with Apple Computer and Java software developers? GUILTY.

What they did was send the case back to the lower courts, because some processes were not adhered to, and removed the idiot judge who can't keep his mouth shut. From the Case Summary filed by the U.S. Court of Appeals:

...the District Court's Final Judgment rests on a number of liability determinations that do not survive appellate review; therefore, the remedial order as currently fashioned cannot stand. Furthermore, we would vacate and remand the remedial order even were we to uphold the District Court's liability determinations in their entirety, because the District Court failed to hold an evidentiary hearing to address remedies specific factual disputes.

Finally, we vacate the Final Judgment on remedies, because the trial judge engaged in impermissible ex parte contacts by holding secret interviews with members of the media and made numerous offensive comments about Microsoft officials in public statements outside of the courtroom, giving rise to an appearance of partiality. Although we find no evidence of actual bias, we hold that the actions of the trial judge seriously tainted the proceedings...

This doesn't sound like a victory for Micro$oft. More like a stay of execution.
posted by JParker at 3:20 PM on June 28, 2001

JParker: depends on a) the instructions that the government lawyers receive from their bosses; b) the judge chosen for the re-hearing. But yes, there doesn't look like much leeway on the findings of fact, and only a bit more on the findings of law.

davidmsc: in simple terms, US anti-trust law says that you can't exploit a monopoly in one product (the operating system) in order to "leverage" uptake of another product (the browser) in a competitive market, even if that product is being given away.

How about this analogy: say your local phone company has a monopoly, and wants to sell its long-distance service to you, so it calls you up and says you can have it for free. At the same time, it prevents other long-distance providers from calling you to offer trials of their service: you have to call them and request it.

Is that an abuse of a monopoly?
posted by holgate at 6:10 PM on June 28, 2001

Davidmsc, I appreciate your asking for more information. That's more than some people seem to do.

I highly recommend reading one of the many books on Microsoft's tactics over the years. Heck, you could even read a timeline of Microsoft's steps over the years and get a pretty good picture, and that's before you even dig very far into the details.

All I know is that anyone that's read a book on MS tends to have a more realistic view than "I wish people wouldn't be such crybabies. Microsoft is a great company, and competitors should spend less time suing and more time creating good proucts."

There's a lot more to this story than incompetent software makers with a grudge.
posted by jragon at 7:05 PM on June 28, 2001

If one thinks the whole concept of "antitrust" is invalid, what Microsoft has done in this respect doesn't matter a whit. A library of books detailing allegedly "anti-competetive practices" wouldn't alter this principle. And if MS had been guilty of real force or fraud, resorting to the Sherman Act wouldn't have been necessary.
posted by mw at 7:34 PM on June 28, 2001

If one thinks the whole concept of "antitrust" is invalid, what Microsoft has done in this respect doesn't matter a whit.

Rubbish. If one thinks the whole concept of "Microsoft" is invalid, that doesn't stop it from existing.

Or are you enough of a Redmond shill to argue that the Sherman Act ought to be rescinded because what's good for Bill Gates is good for America?
posted by holgate at 7:40 PM on June 28, 2001

Let me re-explain, then, since I was obviously unclear: If someone thinks that antitrust law is wrong in principle, giving this person reams of examples how someone violated the law is a huge waste of time. Sure the law exists and no one denies it. And the law is an ass.
posted by mw at 8:01 PM on June 28, 2001

Re: a "monopoly." A monopoly, to my understanding, can exist only as a result of government force or action. How does Microsoft's behavior or it's tactics constitute such? Example - I can not create and operate a cable-television service in my hometown; the existing cable-TV company has a government-enforced monopoly. Same thing goes for the provision of utilities (phone, electricity, sewer, etc). In each of these cases, it is the power of the government, be it municipal, state, or federal, that allows the company/organization to be the sole supplier of said service. In the case of operating systems and browsers, however, this is not the case, as evidenced by DOS/Windows, Apple, UNIX, Linux, OS/2, etc, and IE, Netscape, Opera, etc. Anyone can create software and enter the market to the best of their abilities - without the threat of force from the government on their behalf (or the behalf of their competitors).

Back to my original question: what did MSFT actually DO that constituted a "monopoly," other than creating & selling many products, and how does bundling create the presumption of some sort of guilt?

(note: I am NOT trying to troll or simply stir the pot - I am trying to elicit articulate conversation so that us "ejaculating Objectivists" can try to understand the whole issue)
posted by davidmsc at 10:04 PM on June 28, 2001

davidmsc, that's a good, legitimate question, and you're right, one definition of monopoly does pertain to sovereign governments granting, through commission or patent, exclusive rights to sell particular goods or services. That, however, is not the only definition. A monopoly is also the "abuse of free commerce" by an institution or an individual who has "procured" the advantage of selling alone all of a particular kind of merchandise, to the detriment of the public. Monopoly, under the law, also extends beyond the targeted institution to include the supply chain and related institutions so that, for instance, price collusion is prohibited (again, when such actions are "to the detriment of the public").

Others here could probably give you more detail, but basically MSFT has "procured" the advantage of "selling all alone" operating systems, by virtue of being the first to successfully mass market it. Want to run a computer? Got to have Windows. That may not *necessarily* be the case any more, but for years it certainly was. So, yeah, MSFT did very well from a business perspective, good marketing, excellent distribution, etc. What's wrong with that? Nothing, until you start acting "to the detriment of the public", for instance, not opening up your code so that others can write competitive applicaitions. Buying out every competitor that emerges and either adopting or burying their work. Colluding with suppliers to undercut potential competitors. "Giving away" IE as a "free" browser completely integrated with Windows, and locking out Netscape. The list goes on and on, and frankly much of their behavior was predatory and shameful. Yes, business is war and all's fair in war, until your actions start harming the public. Then it's the government's role to step in and put a stop to it.

Now, as holgate responded to my email above, everything depends on where the government lawyers take it from here. I think initial expectations were that with Dubya in office, the case would quietly go away, as his administration is ultra-pro-business. However, I think the cat is out of the proverbial bag on this one and the political heat will be too high to not take MSFT to the mat. Time will tell.
posted by JParker at 1:11 AM on June 29, 2001

davidmsc: Here's a current example of their tactics, wherein they try to scare companies away from open source software under the general public license (GPL) arrangement used by Linux (and toward, of course Windows XP). This article was written by a Univ. of Virginia professor, who characterizes MSFT's tactics as "an especially virulent FUD (fear, uncertainly, doubt) campaign.".
posted by JParker at 11:06 AM on June 29, 2001

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