MS vs. DOJ

[Chris Rehm <javadisciple@xxxxxxxxxxxxx>]

The link I'm giving is not directly to the quoted article, but to a page
on which the quoted article is linked. My reason for this is that the
link I've provided has a lot more information on this topic than just
the one article. This article is the first one listed on the page.


http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2849066,00.html

It's high noon for US v. MS, and the stakes are enormous
By Tech Update Staff
February 26, 2002


If you ask the proverbial "man-on-the-street," casual industry
observers, or even those who claim to be industry pundits about what's
happening in the case of the United States v. Microsoft
<http://techupdate.cnet.com/enterprise/0-9500-721-235517.html?tag=st.jp.6133425-720-1596099.tvi.9500-721-235517>

, most will say the case is pretty much over--the Department of Justice
settled and the outcome will be generally favorable to Microsoft. But
that could not be further from the truth.

The case is far from over. The U.S. Appellate Court's June 2001 opinion
variously upheld, remanded, and overturned a long list of Sherman Act
violations, and then went on to vacate the District Court's
restructuring remedy. In that opinion's wake, we have reached a defining
moment for both U.S. business and information technology. Not only could
this case determine the future ability of governments to regulate
"technopolies" (technology-oriented monopolies), but it will impact
businesses that continually reconsider their strategic IT plans in the
context of which technologies and technology providers they think will
prevail. The severity of the final remedy could determine, for some time
to come, how many choices are available to business technologists, and
how much innovation will flourish.

The remedy severity ranges widely from one proposed final judgement to
the next. While the DOJ, nine "settling" states, and Microsoft have put
their signature on a proposed settlement
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2846541,00.html>

that regulates Microsoft's monopoly and theoretically puts an end to the
proceedings, eight other states and the District of Columbia couldn't
believe what they saw when they read the proposal and came up with one
of their own
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2849079,00.html>

.

So, what does that mean for the proposed settlement from the DOJ and the
nine settling states? According to Jane Winn, the co-author of a leading
treatise on electronic commerce law (Law of Electronic Commerce) and
professor of law at Southern Methodist University, "Before [U.S.
District Judge Colleen Kollar-Kotelly] can approve any settlement,
[she'll] have to determine if it's in the best interests of the People
[of the United States of America]." In addition to the Tunney Act
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2849085,00.html>

hearing in which the judge will be receiving comments from the public,
Winn says, "The fact that so many states oppose--just as many as those
that agreed to settle--will make it extremely difficult for any judge to
conclude that the agreement is really in the best interests of the People."

The opposing states must have seen something they didn't like. With the
exception of a few paragraphs and words, the two proposals bear little
resemblance to each other.

When asked to comment on any differences or similarities, Winn referred
ZDNet to Linda Eads, a Southern Methodist University colleague of hers
and a former Texas Deputy Attorney General who oversaw that state's
antitrust division. Eads' tenure ended shortly before Texas began its
own investigations of Microsoft's antitrust behavior. Texas is not
currently a litigant in the case.

A few phone calls later, and ZDNet Tech Update editorial director David
Berlind was on a plane to Dallas for a crash course in antitrust law and
some help in deciphering the true meaning of the two proposals. The
goal? To determine what was the same in the two proposals. What was
different? Did the provisions of each ask for too much, enough, or not
enough? Could either stand the test of time, let alone a second round of
scrutiny by the Appellate Court?

David's visit to Texas revealed that this wasn't a case of a typical
proposal and counter-proposal. Instead, it was an honest-to-goodness
remedy showdown that will not only define the face of the computer
industry and other industries for years to come, but also set the
backdrop for whether our government is equipped or has the backbone to
protect the idea of a free market society
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2846246,00.html>

.

The devil is in the details
This ZDNet Tech Update Special Report-- Remedy showdown
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2849066,00.html>

--delves into the dueling remedies and the controversy that surrounds
them. The big question for U.S. District Court Judge Colleen
Kollar-Kotelly is which of the two proposed judgments stands a better
chance of satisfying the official and unofficial objectives of an
antitrust remedies decree. Or, does the answer lie somewhere in between?

The only way to test a remedy for its effectiveness is to imagine the
business and technologies scenarios it would have to survive. The most
vocal opponent to the settlement proposal--Sun Microsystems--has been
lobbying hard with a scenario it believes will prove the settlement to
be ineffective. In an exclusive interview
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2849924,00.html>

with David Berlind, Sun's chief strategist Jonathan Schwartz explains
how he thinks Microsoft is retooling for the next monopoly. Schwartz is
officially listed as a witness for the litigating states in the upcoming
remedies hearing. The interview could very well be a preview of the
litigating states' argument, or a part of it, for a more stringent remedy.

If Schwartz gets to explain Sun's scenario in court, Microsoft or the
DOJ will have to defend itself. Several Microsoft executives including
Chairman Bill Gates and CEO Steve Ballmer, are officially listed as
witnesses for the settling side (the DOJ, nine states, and Microsoft).
In a preview of what Microsoft's defense could be, David interviews
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2849411,00.html>

Microsoft's .Net Platform Strategy Group Manager Adam Sohn who says none
of of what Sun says is true. Sohn claims that "Sun is spreading vicious
lies about Microsoft's intentions" and, in his interview, methodically
debunks every allegation.

As the case runs its course, ZDNet will test some of the provisions with
some scenarios of its own. For example, with the help of SMU's Eads,
David finds that both proposals leave room for interpretation in the
provisions that prohibit exclusive dealing. Comparing the remedies isn't
easy since they use the same words, but those apply different
definitions to those words. David's analysis of the two proposals
glossaries is a revealing look at how something as simple as definition
can change the entire scope of the remedy.

With the Tunney Act hearings around the corner, ZDNet senior editor
David Grober has the skinny
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2849085,00.html>

on why the hearings matter . If you submitted a comment to the DOJ for
consideration under the Tunney Act and want to share it with ZDNet's
audience members, send it to: techupdates@cnet.com
<mailto:techupdates@cnet.com> .

In addition to analysis of the proposals, our coverage will include the
latest news regarding the case and more opinion and analysis. So, please
join us as we dive into what could prove to be the most important case
in contemporary business history. Like the Tunney Act hearing, this is a
good opportunity for you to chime in using ZDNet's Talkback
<http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2846354,00.html#talkback>

feature. Let us know what your thoughts are on the provisions and on our
settlement coverage.







--
Chris Rehm
javadisciple@earthlink.net

Beloved, let us love one another: for love is of God; and every one
that loveth is born of God, and knoweth God. 1 John 4:7