__/ [ Rex Ballard ] on Friday 28 April 2006 19:51 \__
> There are actually a series of related Judgements.
>
> In 1993, Microsoft nearly prosecuted for illegally bundling office with
> Windows 3.1. The Clinton Administration attempted to negotiate three
> settlements, all of which were ruled by federal judges to be too
> lenient. Eventually, Judge Thomas Penfield Jackson was assigned to the
> case, and he accepted a fourth toothless settlement.
>
> When Microsoft bundled Mosaic - I mean Internet Explorer - written by
> Marc Andreeson and team, with Windows 95 to strangle the market for
> Netscape, also written by Marc Andreeson and team, district attorneys
> filed contempt of court motions against Microsoft, and the Clinton DOJ
> herded all of these into a single motion, then pretty much dropped the
> ball when a ruling against Microsoft by Judge Jackson was appealed.
> Microsofts appeal completely restructured all of the evidence in the
> case, and the DOJ, who was assuming that they would only have to defend
> the legal merits of the ruling, did not respond to Microsoft's unusual
> appeal strategy (normally, the appeals court ONLY considers the
> evidence presented during the original hearing, and reverses appeals
> only when there is evidence that due process has not been followed).
>
> The appeals court surprised everybody by completely discarding the
> evidence presented during the evidentiary hearing, and accepted
> Microsoft's version of the evidence, unchallenged by the DOJ, as the
> "Real Story". Based on this unusual treatment of the evidence, they
> nullified the bundling portion of the original ruling.
>
> At this point, Attorney's General for 25 states filed 25 independent
> lawsuits against Microsoft. Possibly at the request of Microsoft, the
> Clinton Administration consolidated the 25 separate lawsuits into a
> single lawsuit - which ended up in front of Thomas Penfield Jackson.
>
> Jackson did not want to give Microsoft any excuse to have his judgement
> nullified. He limited the scope of the hearing, limited the number of
> witnesses, and nearly all of his preliminary rulings were made in favor
> of Microsoft's requests. Even the prosecution was very strictly
> limited, and Microsoft's lawyers were given plenty of leeway in
> cross-examination.
>
> Even when it was very clear that Microsoft was obstructing justice by
> demanding that a Microsoft attorney be present when any Microsoft
> Licensee was being questioned, there were no rulings, Microsoft was
> given the opportunity to publish a very carefully worded announcement
> which permitted these licensees to talk to federal investigators. Even
> when, after this announcement was made, thousands of executives were
> volunteering information indicating a pattern of criminal activities,
> Judge Jackson maintained his restriction on the scope and nature of the
> investigation.
>
> It wasn't until Microsoft began it's defence that things got really
> ugly. During cross-examination, several Microsoft executives,
> including Bill Gates, openly admitted, under oath, that they had
> frequently engaged in fraud, extortion, blackmail, and obstruction of
> justice as routine business practices. The were actually quite proud
> of these practices and justified them as the corporate equivalent of
> "self defence".
>
> Judge Jackson didn't want there to be any confusing regarding the facts
> in the case. He didn't want the appeals court to nullify all of the
> evidence and testimony given during the trial, so he issued his
> Findings of Fact. The most important point of this exercise was that
> the most critical facts of the case were made a matter of public
> record, and could not be sealed and buried.
>
> Then Judge Jackson issued his findings of law, in this case, he ruled
> on exactly which laws were violated, how these rulings were supported
> by the findings of fact, and the basis behind his thinking. It's
> interesting that although the appeals court did not agree with Judge
> Jackson's ruling that Microsoft had illegally established their
> monopoly of desktop operating systems, and waffled on the ruling that
> Microsoft had illegally maintained their monopoly, they did rule that
> Microsoft would not be allowed to engage in any further anticompetitive
> behavior which excluded competition (an aspect of the ruling which
> seems to have completely escaped the current Justice Department).
>
> Where Judge Jackson really blew it was during the remedy hearing.
> Microsoft made not attempt to mitigate the ruling, instead they just
> filed briefs which, in effect said that Judge Jackson did not know what
> he was talking about, that his findings of fact were wrong, and that
> the findings of law were irrelevant. In effect, they pretty much told
> the Judge that he was an idiot, a fool, and expressed total contempt
> for his rulings.
>
> Ironically, Judge Jackson did Microsoft a favor by NOT holding a
> prolonged remedy hearing. It was quite evident that Microsoft's key
> executives were going to further incriminate themselves on the stand.
> Perhaps Judge Jackson didn't want young people to look up to these
> Microsoft executives who claimed to be criminals who were above the
> law, as heros. It was quite clear at this point, that Microsoft was
> going to attempt to bait the judge into making remarks or taking
> actions which could be used to nullify the entire proceedings.
>
> Judge Jackson knew that his decision to order divistature would
> probably be overruled by the appellate court. Furthermore, he was
> probably reluctant to actually order such a divestature against the
> wishes of Microsoft's management. On the other hand, if he had ONLY
> issued a remedy based on the interim restrictions, Microsoft would have
> faught those and might have nullified most of them on appeal. He
> created a remedy ruling which was very carefully designed to allow the
> appeals court to overturn the divestature order, but at the same time,
> order the remand court to include most, if not all, of the restrictions
> which had been ordered as part of the "Interim Restrictions".
>
> To be absolutely sure that Microsoft could get the divestature order
> overturned, Judge Jackon completed his final drafts, turn them over to
> his clerks for the appropriate "window dressing", and immediately
> scheduled an interview with a reporter in which he went on record and
> called the Microsoft executives a bunch of criminals.
>
> I think that the Appeals Court even understood the nature of Judge
> Jackson's actions, which is why they didn't reccomend any actions
> against the judge. They overturned one ruling of law, which Judge
> Jackson knew was on shaky ground, which gave the court the ability to
> remand the case to a lower court - but not Judge Jackson's court.
>
> Judge Kollar-Kotelly got the case and pretty much told Microsoft "Give
> the DOJ a settlement they can live with or I will throw the book at
> you". Bush took divestature off the table immediately (weakening the
> bargaining position completely), then basically gave Microsoft a deal
> which, in effect, tied the Judge's hands behind her back. Even thought
> Microsoft continues to engage in the exact behavior which both Jackson
> and the Appeals court have ruled to be illegal, the "Compliance
> Committed" and the"Technical Committee" seem to routinely ignore every
> complaint, including direct violations of Judge Kollar-Kotelly's direct
> orders as well as the direct orders of the Appeals court.
>
> Bush has put the foxes in charge of the hen-house, and they seem quite
> happy to let Microsoft continue to engage in criminal acts, including
> the same type of fraud, extortion, blackmail, and obstruction of
> justice that Judge Jackson alluded to in his public interview.
"Let the guys in Redmond continue to innovate", he said (not exact quote).
Why would he mind as long as a stream of money is reaching the US (do
Microsoft pay no dividend, still?) at the expense of the world's remainder?
Ironically, the government become a sort of an accomplice to fraud by
turning a blind eye.
> The EU eventually filed antitrust charges of it's own, and since those
> rulings were first handed down, the leadership of a few different EU
> countries has changed to the opposition party. Could it be that
> Microsoft has been hand-picking these candidates early in the selection
> process (pre-primaries) and leveraging that influence to control the
> leadership of the United States, the EU, and other opposition forces?
>
> The irony is that Bill Gates promised to do this back in 1984, right
> after the revenues of Microsoft became greater than those of Lotus,
> which had been the world's largest software company by revenues.
>
> I would love to find the transcript of those interviews, and the rather
> substantial thread from usenet. Unfortunately, in 1984, usenet
> discussions were not considered to be of historical significance, and
> nearly 99.99% of the content was lost. What is available from Google
> from that period amounts to the personal archives of a handful of
> threads collected, edited, purged, and archived years before Google
> finally got the rights from Walnut Creek.
I thought it was Deja News that held extensive archives prior to the Google
takeover. I am aware that they accumulated CD's to patch their archives
thereafter.
> By 1994, usenet news traffic in critical technical groups exceeded 2
> megabytes/day. A 300 megabyte disk pack for a Vax 11/780 cost about
> $5,000 and the CDC "washing machine" drive cost nearly $50,000. The
> tape drive was the size of a refrigerator, and cost another $50,000. A
> 12 inch reel-to-reel tape cost about $200, and held about 10 megabytes.
> (Yes, these prices are just based on vague memories from the days when
> I used to price and buy the stuff - 22 years - ago so they could be off
> by as much as 50% either way).
>
> Optical storage such as what we now call CD-ROM and DVD-R were almost
> science-fiction. Video disks were available, but had to be mastered
> using a photographic "print" process. It took several years to find
> material which could be reliably etched using low-powered lasar beams
> fed by digital signals directly from a computer, and the first
> practical CD Writers didn't come out until about 10 years later.
>
> Enough rambling. Back to work.
Excellent post, Rex.
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