[Microsoft] MS refuses judge's order, antitrust meltdown to follow?

The Register USA ^ | 06/20/2002 | John Lettice

[JameRetief]

MS refuses judge's order, antitrust meltdown to follow?

By John Lettice

Posted: 06/20/2002 at 03:44 EST

Two days ago Judge Colleen Kollar-Kotelly issued an order demanding a measure of compromise from the warring parties, and yesterday Microsoft refused to comply. So the scene is now set for a collision that could take down the DoJ-Microsoft settlement and set the whole trial roadshow in motion again.

CKK was hearing closing arguments in the dissenting states antitrust case yesterday, and had told the states and Microsoft to come up with some flexibility. The states did, Microsoft did not, and although we should take into account that it was actually a lot more difficult for Microsoft to bend, by utterly rejecting the notion it is playing a dangerous game for high stakes.

The states had been asked to prioritise the measures they felt would be most necessary in the event of their proposals being rejected, and to suggest how the DoJ-MS settlement could be modified to make it more acceptable to them. This is, as you can see, a pretty easy task, and they came back with the need for technical disclosure and protection from restrictive contracts and retaliation for PC manufacturers. Eminently reasonable, no?

Ah, but the questions for Microsoft were much nastier. In the event of its favoured remedies proposal being rejected, it was asked to "identify the provisions contained in the Plaintiffs' proposed remedy which, if included in the Court's remedy, would prove least onerous to Defendant, yet remain effective as a remedy." So, CKK is saying, just imagine I'm going to torch your little deal and give you something worse. Tell me which of the measures you've been utterly rejecting would hurt least, yet still hurt enough to work.

There's really no answer to that if you've spent the entirety of the states' hearings out on the end of a branch with a saw. She has an acid little sting in the tail too: "As Defendant is well aware, its proposal has been criticized for 'exceptions which swallow the rule.'" Indeed.

The options for Microsoft's attorneys were limited. They could maybe have gone for dumb insolence, going through the motions and coming up with something long and ludicrous that didn't answer the questions the way CKK wanted. Or, they could just say no, it is absolutely impossible for us to address this because the settlement we've already negotiated does the job, while the states' proposed remedy is an unacceptable and unworkable wrecking document.

Which is the route they went for. The states' proposal was "fundamentally flawed," said Microsoft attorney John Warden (we trust Microsoft gets the words cheaper when the lawyers use them over and over again). The proposals would hurt consumers, cause "enforcement chaos," and couldn't be mended by changing a few words here and there (which is, ahem, what Microsoft seems to be good at). "We can't fix it."

So that's a no, then? This next bit is however possibly most significant: "We have been through this. We negotiated. We went as far as we can go. That's the deal."

Remind you of something? One of the kites Microsoft's attorneys have been flying is the notion that the states have no business interfering in the DoJ deal in the first place, and the judge oughtn't to be messing around with it either. She should just sign it off, and that's that. CKK made it pretty clear during the hearings that that she didn't buy this one, so it was no surprise when she formally kicked it into touch last week. But here we have Warden, the next week, saying pretty much the same thing - we can't change it, it should be accepted, that's the deal.

So you can see how the big train wreck happens. If CKK tosses the MS-DoJ deal or requires significant changes, then from Microsoft's point of view the deal could well be off. Which would mean its new friends at the DoJ would have to stop being friends and resume litigation - wouldn't that be an amusing process to observe, considering that its high command has gone on record as saying the negotiated deal is better than anything they could have achieved if they'd continued litigating? Dear oh dear.

It is however possible that Microsoft believes something along those lines. Some of the states' proposals would certainly be painful for the company, but others could just about be accepted without the world ending. So if the company really won't deal, it must really think it can come out of the other end with something similar to, or even better than, the existing deal. Or it might just have myopia induced by a previous victory.

Back in the days of the MS-DoJ consent decree, the one that the DoJ lashed up so badly that it subsequently wound up with the whole antitrust matter, Judge Stanley Sporkin revolted and refused to sign it off. We feel sure that if we dug around the records we'd find somebody saying something pretty similar to: "We have been through this. We negotiated. We went as far as we can go. That's the deal." Which was as true then as it is now.

Then, however, there weren't any pesky dissenting states. Microsoft and the DoJ had cut a deal, the judge was not supposed to be messing around trying to change it, he was just supposed to sign it and go away. So Mad Stan was removed, and an alternative judge signed the decree. One Judge Thomas Penfield Jackson, as we recall... ®

[conservatism_IS_compassion]

Phooey! Dubbya should just announce the incentives which make it impractical to try to sell Window-only boxes to the government. And that goes for peripherals as well as sys units.

Make it so's everyone puts up a Linux driver for their peripheral, and all sys units carry Linux as an option pre-installed on the machine. The same rule could apply for Mac's as well, for completeness.

From there it's every man for himself, and leave the lawyers out of it.

[Jubal Harshaw]

Unlike industrial behemoths of the past, Microsoft has a major ace-in-the-whole when dealing with regulators. It can move the entire company 100 miles north to Vancouver BC, or anywhere else in the world, and still operate. It's not tied to fixed oil wells, copper cables, or the suicidal idea that its needs are inferior to those of the federal government.

It wouldn't surprise me at all if MS had some campuses pre-built in various locations, should it decide to simply move its operations.

[THEUPMAN]

Phooey! Dubbya should just announce the incentives which make it impractical to try to sell Window-only boxes to the government

OR maybe Bill ought to stop sellig his stuff to the states that keep screwing with him.
You see what he did to Sun, he dosn't need the money ya know....

[dheretic]

Do explain how they are going to convince what is it now, 35,000 white collar employees, to essentially become expatriots? The US government could retaliate by placing an order with Apple to replace 1-2M federal desktops with PowerMacs and iMacs and probably close to that many PC laptops with iBooks or PowerBooks. That scenario would be more likely than a switch to Linux since MacOS X is EXTREMELY intuitive. The boss's secretary would feel more at home with it because its layout just makes sense. I could also see the federal government placing a mandate on education grants stating that in order to be eligible the states/locals would have to switch to Linux, FreeBSD or MacOS X. The US government through its purchasing powers could literally kill of Microsoft if it left the country. Imagine virtually every government switching to Linux and MacOS X for their OS and OpenOffice for the office suite in retaliation. That would be probably about as many as 10,000,000 users lost in this country. Then add in all the major federal and state contractors. Then add in a bunch of the contractors' suppliers. It would be horrendous for Microsoft.

[dheretic]

OR maybe Bill ought to stop sellig his stuff to the states that keep screwing with him. You see what he did to Sun, he dosn't need the money ya know....

Or maybe Bill actually does that. If he were to try to keep Microsoft products out of those states over this, many users would go ballistic for Microsoft punishing them over this. Many users in other states would boycotte and a general movement away from Microsoft products would commense. Earthlink and AOL would rip MSN a new one in those states and Apple's mail and online order units would be busy 24/7 taking orders for new Macintoshs. Oh and you forget that the OEMs would revolt and kill off Windows on the high end. All servers and workstations would come with Linux and FreeBSD in retaliation.

[Fish out of Water]

*Index Bump

[John Valentine]

Good riddance to bad rubbish.

[nygoose]

Home Depot stood up to the G. I would love to see Mr. Gates threaten to move the company to Canada or India. Someone has to stand up to these bureaucrats.

BTW, if the tobacco companies had long ago refused to sell cigarettes in certain states, they would have never been harmed as much as they have been by this unending litigation.

[nygoose]

I think you may be underestimating the public's loyalty to Microsoft.

[Tailback]

According to a Newsmax article I remember seeing a year or more back, Microsoft has already been in contact with the Canadian and British Columbian governments to do just what you mentioned. If Microsoft gets a death sentence from the DOJ they simply pack up and move North.

[nygoose]

If the Federal Government replaced all its computers with either the Mac OS or Linux, it would never reopen.

[MississippiMan]

Good for Microsoft. I don't care for Gates' liberal politics, but this isn't about his liberal politics. This case has always been about government taking down someone who was "too successful." Microsoft played the capitalism game and won. Leave 'em alone.

MM

[dheretic]

How do they get their 30,000+ employees to move out of the country? More pay? To live under a Socialist system where they would be deprived of many rights they take for granted here, where their kids are more likely to die waiting for medicalcare? Microsoft would probably have to spend a few billion dollars of its reserves to get its employees to move. It's one thing to start leaving the state, it's quite another to get them to leave their country. Plus keep in mind that many Americans would consider them traitors.

I say good riddance to Microsoft if they leave the US for Canada. Within a few years at the most they'll be nationalized by Canada and Cretien and company will be laughing at their stupidity. Microsoft isn't going to get a "death sentence." The government has rejected the breakup proposal, one of the reasons being is that a lot of users, especially non-Microsoft users actually prefered that they be kept in one piece. If Microsoft leaves over something small that would ruin its image.

[THEUPMAN]

Many users in other states would boycotte and a general movement away from Microsoft products

Most folk are so inept at actually using a computer that without the nanny like interface of windows they would be lost. Face it Bill's the man, your not going to stop him.

.

[dheretic]

Are you suggesting that an angry mob would rush every federal building in outrage that those God-fearing "capitalists" at Microsoft are being given the boot by federal agencies or trying to make the laughable assertion that MacOS and Linux cannot easily replace Windows for the needs of federal agencies? See either way, the federal government will come out on top. It doesn't need to care about people protesting its decision to not go with Microsoft products anymore. If they turn violent it can either kill them or mass-detain them under the USA PATRIOT Act by declaring them to be terrorists. As far as making the conversion goes, it would take only 1 day to retrain most workers how to use MacOS X/Linux and OpenOffice. The serverside wouldn't need to be changed in many cases because it is already running on Solaris or another UNIX. Should the US government go with Linux, setting up a GNOME or KDE desktop is easy. Just autostart XFree86, show them how to log in and set up the desktop to emulate the Windows L&F.

[Random Access]

So lawyers have figured out how to make more money on the computer industry than programmers do. This isn't about anything except a transfer of wealth to people who build nothing and create nothing.

[alrea]

Home Depot stood up to the G. I would love to see Mr. Gates threaten to move the company to Canada or India. Someone has to stand up to these bureaucrats.

...if the tobacco companies had long ago refused to sell cigarettes in certain states, they would have never been harmed as much as they have been by this unending litigation.

Challenges facing our economy are significant. This post describes the simple, yet perfect answer. Companies have to fight back, sooner. Bureaucrats, liberals and attorneys playing our legal system for massive redistribution are a step away from killing the golden goose.

[Tailback]

You're kidding right? The employees don't even have to move out of the country. They simply move right near the border with Canada (which is probably within 1 hours drive from where they live now) and drive a better commute than what they deal with now. Is socialist Washington state any better or worse than socialist British Columbia? In my opinion not really. Honestly it would probably benefit MS employees to move away from the traffic nightmare that is the Seattle metro area.

[boris]

I think Bill Gates should respond by selling all his stock, firing all his employees, and going fishing.

That's what I'd do.

Think about it. Delicious, isn't it? Sort of a mini-Atlas-shrugged scenario.

OK, you got what you wanted. No more "monopoly". No more "evil Microsoft". No more "exploitation." No more jobs, either. No more releases. No more technical support. Go run Linux, I'm going to Disneyland.

What do you think would happen?...

Har.

--Boris