The DOJ abdicates its ethical responsibility

Posted 28 Jan 2002 at 11:59 UTC by chalst Share This

I think this is too late for the consultation process, but since I am happy with the formulation, I'd like to share my argument for the appeal court overruling the DOJ/Microsoft settlement and pursuing a breakup.

I believe that it is the responsibility of the Department of Justice, and not Microsoft, to protect the economic interests of the computer industry by protecting competetion and innovation. The DOJ strongly argued for this position in its suit against Microsoft, but in its recent settlement it has reversed its position, apparently concluding that what is good for Microsoft is good for the software industry. If the DOJ truly believes this, then it should appeal the current verdict. To reverse its previous legal position without arguing for this reversal in court is unethical, because this constitutes a vacation of its responsibility to uphold the public interest.

I think the above conclusion is inescapable if we accept the following theses:

  1. Microsoft's responsibility to its shareholders entails its aggressive exploitation of the whole of its competitive strengths: Microsoft has pursued a clear and consistent position in court. While Microsoft's performance in Judge Jackson's court may indicate that Microsoft tampered with evidence, where it stands in respect to its position as monopoly has been clearly argued with both conviction and integrity. It is this: the lesson learned from IBM's troubles with antitrust suits in the 1980s is that a dominant business in the computer industry can only protect its shareholders interests by maintaining its monopoly without being intimidated by the threat of antitrust legislation.
  2. In Microsoft's business, only the paranoid survive: Furthermore, for Microsoft to maintain its monopolies in an industry that changes as quickly as the computer industry means that it must extend its monopoly to any new market whose products threaten to displace its current monopolies. Microsoft understands that its responsibility to shareholders requires it to leverage its existing monopoplies to intimidate and undermine rivals in other markets whose products possess this power; this is the principal conclusion of Judge Jackson in the trial brought by the DOJ.
  3. Microsoft's monopolies injure business innovation, technical innovation and price competition in the computer industry: Especially they undermine the competitive strengths of alternatives developed by companies too small to challenge Microsoft in the courts, such as Be's BeOS and Dave Winer's Frontier, and of contributions by developers in the free software community such as Linux and Zope.
  4. To maintain competition in the markets in which Microsoft dominates through its advantages as a monopolist requires Microsoft to be successfully limited in the courts.
  5. To restore competition to these markets without infringing Microsoft's `right to innovate' requires a structural rather than a behavioural remedy: Microsoft is a `serial recidivist': there is a long history of bevioural remedies that have failed to deter Microsoft from effective exploitation of its monopoly position.

The DOJ argued strongly for a break up of Microsoft in the trial courts. If it no longer believes that Microsoft's monopoly position requires effective legal limits, it has a duty to make its reaons for beliving this public. Its failure to do so is a very gross failure of its ethical and legal mandate to protect competition from monopoly abuse in the computer industry. I believe that the courts should pursue a structural remedy, ie. a breakup of Microsoft, irrespectively of the DOJ's new position in the proposed settlement.


Exact text, posted 28 Jan 2002 at 12:37 UTC by chalst » (Master)

The exact text I sent to microsoft.atr@usdoj.gov is available online at:
http://www.linearity.org/cas/letters/microsoft-doj-settlement
in UNIX mailbox format. http://www.kegel.com/remedy/ is a good reference on the Tunney process.

DOJ is focusing on more important national crisis..., posted 28 Jan 2002 at 20:27 UTC by badvogato » (Master)

I'm afraid DOJ is focusing on more important task at hand, like advising Bush administration on this paramount decision .

Ashcroft says to statue 'Cover that tit!', posted 29 Jan 2002 at 01:18 UTC by badvogato » (Master)

Another news report on DOJ 's current agenda: Ashcroft sez to statue 'Cover that tit!'.

Re: your ransom note, posted 29 Jan 2002 at 08:49 UTC by chalst » (Master)

badvogato: you are very bad. Please stop. I'll meet your demands.

Lobbies, posted 29 Jan 2002 at 09:42 UTC by hub » (Master)

How come do you want the DOJ break up a company since the DOJ is directed by people that get elected and whose campaign get financed by these companies ? Not that this is NOT an isolated case.

Welcome to the real world.

Real world, posted 30 Jan 2002 at 09:08 UTC by chalst » (Master)

In the real world, appearances matter, and surprisingly small efforts can make a difference. I don't suppose it is likely that making a clear case that the DOJ is failing to support the public interest will make any difference at all, but it is possible.

The appeal judge apparently may take the contributions made under the Tunney act seriously enough to want to answer arguments made there. If my argument is directly or indirectly addressed in the appeal judge's final verdict, then I will by happy with the effort I have made. Check the link I posted above.

Re: Ransom notes, posted 30 Jan 2002 at 17:00 UTC by badvogato » (Master)

Mr. chairman, please accept my apology. I didn't know that this floor is actually an open floor with preemptive thread. Hope it's not too late to get on with the agenda it was intended for...

Aim of this thread, posted 30 Jan 2002 at 19:43 UTC by chalst » (Master)

badvogato: :>

I referenced this thread in my letter to the process, and I'd like this to be a place that *possibly* might be read by non-free-software types. While I think there are reasons to be angry about the new Bush administration (in particular: GWB gave clear signals in April 2000 that he would *not* interfere with the DOJ vs. MS process), I don't think it's a good place to complain about the elected government.

broken, posted 30 Jan 2002 at 21:24 UTC by yakk » (Master)

The system seems to have slipped away from serving the people to serving corporations. This is broken, and it makes me sad. Luckilly I can leave and live somewhere else. Unfortunately because most other places in the world aren't so focuessed on corporations I'll have a hard time finding as rich a work life.

So given the state of the US government and US politics I think it would be inappropriate for Microsoft to be broken up. I think this crazy experiment needs to be played out to its conclusing if only to warn future generation about the risks of making bribery and corruption a formal part of a political system. And it will fall apart. This sort of system fell apart in Indonesia and its falling apart in Malaysia. The trigger then was an economic downturn, perhaps this will be the upside of what we're seeing now.

US Government - "I Can't Believe Its Not Democracy"(tm)

bootloader, posted 31 Jan 2002 at 04:45 UTC by grant » (Journeyer)

the DOJ is *still* overlooking the bootloader issue in favor of the browser... the BROWSER.

sorry to yell, but surely any layperson (computing-wise) would agree that Microsoft is monopolizing market channels through illegal coercion of OEMs : by way of the bootloader.

let's let BeOS back in... and allow integration of software in order to achieve device/protocol convergence more efficiently

What I Sent, posted 1 Feb 2002 at 10:54 UTC by ncm » (Master)

I sent in this. I hope it doesn't end up in the bit bucket, but expect it will. The slim chance that it might make a difference was enough for me. (I sure would like to see those perjury trials!)

1. It appears to me that all the proposed settlements treat the company as if it had not yet been convicted. Worse, they ignore the company's prior history of consciously circumventing the spirit and letter of court orders. This is a company whose officers have frequently denied the authority of the government to control its abuses. For the outcome of this case to be useful, it must not only prevent the company from harming the nation further, it must demonstrate to Microsoft and others that the law does have teeth even where a large and wealthy corporation is involved.

2. The main public reason for limiting the severity of a sentence has been to avoid driving the offender entirely out of business, harming its employees, existing customers, and stockholders. With Microsoft's monopoly profiteering unchecked lo these many years, it is equipped with tens of billions of dollars to help it ride out any temporary inconvenience, regardless of severity. I see no practical need to mute the terms in order to allow the company to continue operating. It can afford almost anything, for years.

3. All the proposed settlements I have read were complicated and hard to administer, which probably would result in both successful circumvention and further litigation. Simplicity is essential. Furthermore, the burden of proof that the company is faithfully abiding by the terms must be on the company, not on the government(s) or the company's victims.

4. The primary means by which the company has been able to cement its monopoly has been through enforcement of exclusionary contracts. One effective means of limiting its power would be to specify broad conditions under which courts are directed to rule against the company in disputes, despite contract terms or court precedents. (The company's monopoly and deep pockets inevitably tilt the scales, despite any settlement terms; the court should artificially tilt them back.)

5. Another means by which the company has excluded competition has been to limit access to preferential prices to those who obey it (contract or no). This mechanism should be made unavailable by requiring that all products be available to anyone at a fixed price, regardless of circumstances, with no permission to tailor a product for a particular customer. Even volume discounts tilt the field against smaller competitors; the company has no immediate need to charge smaller customers more.

6. The company has used its control of details of its products' implementations to exclude competitors. It does this both by changing existing products in undocumented ways to make them incompatible with competitors' products, and by keeping details of new products secret. Forcing the company to publish freely all details of the external behavior of their products -- their "APIs", "protocols", and "file formats" -- would reduce this threat. (Note that exceptions for "security details" have already been proven unnecessary and actually harmful to security; given such an exception, critical competitive details could easily be concealed.) The company should be prevented from releasing products until the completeness and correctness of the documentation has been established, so it has incentive to document well.

7. The company has eliminated competition by purchasing control of smaller companies that threatened to develop market share in areas it hoped to dominate. The company should be prevented from acquiring control of other companies, and should be forced to sell off subsidiaries and divisions that would place it in new markets.

8. The company has acquired a large portfolio of patents which could be used as an alternative means to exclude (at least smaller) competitors. While they appear not to have used this mechanism much yet, once other avenues of exclusion are forbidden the company will be tempted to exercise exclusionary patent rights. These patents should be released into the public domain immediately.

9. Much of the company's ability to attack markets comes from its cash reserve. This should be placed in escrow, and cash metered out for individual expenses once it is determined that they do not contribute to monopoly dominance.

10. The penalty for failure to perform up to the terms of the final settlement should be the wholesale loss of trade secret and copyright status for the affected product(s).

11. Those company officers who lied under oath and falsified evidence should immediately be prosecuted for perjury and obstruction of justice.

Re: What I sent, posted 1 Feb 2002 at 13:50 UTC by chalst » (Master)

ncm: Good post. I would also like to see the perjury trials. Do any legally informed persons know who is entitled to bring such suits?

Smoke, Mirrors and Bad Water Running Deep, posted 4 Feb 2002 at 20:07 UTC by garym » (Master)

The way I figure it, maybe if 145 million of us all got together and chipped in $100 each, maybe we could buy enough senior officials to make a difference here. America wanted Bush enough that the race was so close, and now they got him. Way back when the Finding of Fact came out, I was on a panel on RadioWallStreet.com, and we all pretty much agreed that a republican president would very likely look the other way. No surprises here.

I'm going to play a bit of Devil's Advocate. Part of my MS/DOJ apathy is not a cynicism as much as I never thought the DOJ case was really all that important to begin with, not in the global scheme of things. When Linux bound the browser to the desktop with KDE 1.0, everyone thought it was a great idea, yet when MS did it a year later, it's evil. (ok, I know, MS wouldn't let you delete their Konquerer-clone, but hey, we've hacked around worse MS-isms before, and we'd figure a way)

I think there's a much deeper issue here, and the DOJ case is just like getting Al Capone on tax evasion: Taking what we can get.

IMHO, Netscape didn't fail 100% because of Microsoft's evil doings. Part of the blame must rest on what we discovered when Netscape's code went open source: The codebase was buggy and a nightmare to maintain. It's convenient to blame Microsoft, and MS does have a long track record of doing this sort of nasty business to many smaller companies (as detailed in the FOF) and deserves totally to get more than a harsh word, but I don't think that's going to happen. Let's face facts: Gates is way more wealthy than J.Paul Getty. He's even wealthier than O.J.Simpson.

My work often touches issues of MS influence on governments and economic development world-wide. I'm not totally convinced the breakup of MS would have any lasting effect on these issues. The real issue stifling propserity and innovation is not the monopoly per se, but on the patent law and other IP restrictions MS (and many others) uses behind its name.

The problem is not Microsoft, it's what they do, and the fact that where they do the most damage is perfectly legal so long as we allow those laws to exist. If RedHat was the monopoly, it wouldn't matter, in fact it would be a bonus because any little shop anywhere in the world would have this standards-based open and transparent technology infrastructure to base their business. As with automotives, there's very little chance my local machine shop is going to market a car with more than 0.05% world market share, but they can and do make a good living producing customized parts for vehicles made by all the Big Players. Software should be the same.

'An unpopular opinion in populist times is always good for a laugh, but I say lets stop squanding public money on a lost symbolic cause and instead put the same resources into Lawrence Lessig like causes that affect all vendors, not just the largest target.

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