Comment Real Legal Issues (Score 2, Interesting) 315
Mostly what I've seen so far is a complete lack of any real understanding of the legal realities facing the DOJ at this time. Try reading the decisions of the courts and you will see that the DOJ's options are limited. Thus the state Attorney Generals agree with the DOJ approach (if not all the details).
First of all, someone needs to explain what breaking up Microsoft would accomplish. If the OS is isolated in a separate company I can't think of any of the current bad behavior of Microsoft that is restricted unless you also have conduct restrictions. Second and more important for the DOJ, the Appeals Court clearly signalled that a break-up is a punishment of last resort and would take a very high level of proof. In other words, a Microsoft break-up will take extensive court hears to pursue, will guarantee another tedious, time consuming appeal and the Appeals Court would be very likely to overturn the break-up order again.
As for bundling other products with the OS, the Appeals Court also clearly stated that this issue needs more proof before it could be allowed as a claim. The DOJ was looking at extensive hearings and a difficult issue to prove. (Anyone who is interested in actually knowing why, there are about 18 pages in the Appeals Court decision explaining the tying issue http://caselaw.lp.findlaw.com/scripts/getcase.pl?c ourt=dc&navby=case&no=005212A). So again, the DOJ was looking at a great deal of time and money to try to prove something that would very likely not stand up on appeal since the Appeals Court has already indicated scepticism on this issue.
On the other hand, conduct restrictions are going to be relatively quick to formulate and get through court proceedings because there is very little additional to prove. Microsoft has already been proven to be a monopoly. And certain anti-competitive behavior has already been proven. The DOJ needs only to fashion conduct restrictions that fit the proven bad behavior. Since license issues were involved in the already proven illegal activity of Microsoft, the license would seem like the natural place to restrict Microsoft's behavior.
And the key to controlling Microsoft is to go after the license. The license is the tool that Microsoft uses to punish and reward the hardware companies. Consider fot instance that Jean-Louis Gassee said that one of the primary reasons for the failure of the BeOS (from a marketing point of view) was that he could not get OEM's to install it on new PC's even if he gave the OS to them at no cost. The only reason: Microsoft license restrictions. It is also worth noting that Steve Ballmer said that the temporary conduct restrictions in Judge Jacksons original order were, from Microsoft's point of view, almost as draconian as a break-up order. Quite a lot of these conduct restrictions involved the license.
An additional benefit to pursuing license restriction is this. Licenses are contracts. Contracts are something that courts understand quite well. Courts generally don't like most conduct restrictions because then they have to monitor them and it takes their time. But of all the conduct restrictions, license restrictions would be most appealing because its in writing and its something the court understands.
So, to summarize, here is the implied DOJ thinking based on the Appeals Court decision and the DOJ's written statement:
1. A break-up will require extensive proceedings, will be difficult to prove and will probably not be approved by the court or would be reversed on appeal.
2. This may not be the best case in which to prove product bundling that is detrimental to the consumer and the Appeals court has indicated scepticism on this issue.
3. Since the appeals court has already reviewed and agreed that Microsoft is a monopoly and that certain licensing practices were anti-competitive, the DOJ can seek remedies on this subject with almost no additional evidentiary hearings. Licenses will be in writing and therefore, the most appealing to the courts that will have to administer the restrictions.
So what is it people would want really? A symbolic break-up of Microsoft that would take years to get done after all appeals, etc. and would probably accomplish nothing. Or a real solution that is a positive for all consumers and can be accomplished in a few months. Plus, nothing is really given up. Because of the obvious issues in XP, DOJ can pursue bundling and other issues any time they chose (that is, any time they don't like Microsoft's behavior!)
Consider this, if the original restrictions of Judge Jackson were imposed we could now be purchasing machines that have a desktop free of Microsoft software and links and containing whatever software the hardware vendor chooses. Oh yeah, you could probably buy a machine that dual boots Windows and Linux. Sound like a good plan to me!!
First of all, someone needs to explain what breaking up Microsoft would accomplish. If the OS is isolated in a separate company I can't think of any of the current bad behavior of Microsoft that is restricted unless you also have conduct restrictions. Second and more important for the DOJ, the Appeals Court clearly signalled that a break-up is a punishment of last resort and would take a very high level of proof. In other words, a Microsoft break-up will take extensive court hears to pursue, will guarantee another tedious, time consuming appeal and the Appeals Court would be very likely to overturn the break-up order again.
As for bundling other products with the OS, the Appeals Court also clearly stated that this issue needs more proof before it could be allowed as a claim. The DOJ was looking at extensive hearings and a difficult issue to prove. (Anyone who is interested in actually knowing why, there are about 18 pages in the Appeals Court decision explaining the tying issue http://caselaw.lp.findlaw.com/scripts/getcase.pl?
On the other hand, conduct restrictions are going to be relatively quick to formulate and get through court proceedings because there is very little additional to prove. Microsoft has already been proven to be a monopoly. And certain anti-competitive behavior has already been proven. The DOJ needs only to fashion conduct restrictions that fit the proven bad behavior. Since license issues were involved in the already proven illegal activity of Microsoft, the license would seem like the natural place to restrict Microsoft's behavior.
And the key to controlling Microsoft is to go after the license. The license is the tool that Microsoft uses to punish and reward the hardware companies. Consider fot instance that Jean-Louis Gassee said that one of the primary reasons for the failure of the BeOS (from a marketing point of view) was that he could not get OEM's to install it on new PC's even if he gave the OS to them at no cost. The only reason: Microsoft license restrictions. It is also worth noting that Steve Ballmer said that the temporary conduct restrictions in Judge Jacksons original order were, from Microsoft's point of view, almost as draconian as a break-up order. Quite a lot of these conduct restrictions involved the license.
An additional benefit to pursuing license restriction is this. Licenses are contracts. Contracts are something that courts understand quite well. Courts generally don't like most conduct restrictions because then they have to monitor them and it takes their time. But of all the conduct restrictions, license restrictions would be most appealing because its in writing and its something the court understands.
So, to summarize, here is the implied DOJ thinking based on the Appeals Court decision and the DOJ's written statement:
1. A break-up will require extensive proceedings, will be difficult to prove and will probably not be approved by the court or would be reversed on appeal.
2. This may not be the best case in which to prove product bundling that is detrimental to the consumer and the Appeals court has indicated scepticism on this issue.
3. Since the appeals court has already reviewed and agreed that Microsoft is a monopoly and that certain licensing practices were anti-competitive, the DOJ can seek remedies on this subject with almost no additional evidentiary hearings. Licenses will be in writing and therefore, the most appealing to the courts that will have to administer the restrictions.
So what is it people would want really? A symbolic break-up of Microsoft that would take years to get done after all appeals, etc. and would probably accomplish nothing. Or a real solution that is a positive for all consumers and can be accomplished in a few months. Plus, nothing is really given up. Because of the obvious issues in XP, DOJ can pursue bundling and other issues any time they chose (that is, any time they don't like Microsoft's behavior!)
Consider this, if the original restrictions of Judge Jackson were imposed we could now be purchasing machines that have a desktop free of Microsoft software and links and containing whatever software the hardware vendor chooses. Oh yeah, you could probably buy a machine that dual boots Windows and Linux. Sound like a good plan to me!!
