Beast of Redmond rants at rebel States

A welcome return to fine foaming form by the massed attorneys...

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Microsoft yesterday filed a Proposed Final Judgment and an accompanying "explanatory brief" with the DC court. As one would expect, the PFJ is as previously agreed with the DoJ, and therefore dull and unsatisfying. But the brief is largely a hilariously incandescent onslaught on the nine holdout States who filed their own, somewhat more radical, proposals at the end of last week - the massed attorneys of Redmond have indeed let rip in style.

The document commences sniffily: "At the outset of these proceedings, the Court clearly expressed its view that this case should settle." Already it begins to sound like the States are in contempt of court by not agreeing with Microsoft and its new friends at the DoJ. "The United States - the only plaintiff here with legal responsibility for enforcing the Sherman Act [there, ultra vires as well]... has concluded that the RPFJ [Revised Proposed Final Judgment] adequately addresses each and every one of the anticompetitive acts found by the Court of Appeals."

We're revving-up now. The nine States have chosen "to pursue their own radical and punitive injunctive relief that extends far beyond the case that was tried and the liability determinations that were upheld on appeal... wholesale confiscation of Microsoft's intellectual property and unprecedented governmental regulation of Microsoft's product design decisions... This document will not provide an exhaustive list of all of the defects in the non-settling States' proposed judgment... fundamentally misguided..."

Now we've set the scene by showing what a bunch of deranged mullahs the attorneys general are, we move swiftly on, revisiting ultra vires, towards conflict of interest. The States "have no responsibility for formulating national competition policy or enforcing the Sherman Act [but they] seek to supplant the RPFJ negotiated by the United States. In effect, they are attempting to substitute their judgment as to what nationwide relief is appropriate here for that of the United States."

Clearly, the States have no business being involved in this suit in the first place. So maybe they shouldn't have merged their action with the DoJ's - maybe they should have to start suing Microsoft all over again, from the beginning? Unfortunately, the massed attorneys don't specify which they'd prefer. They are however specific about the role of the States.

They "have standing here only as parens patriae on behalf of natural persons - i.e. consumers residing within their borders, and they are entitled to relief only to the extent that their citizens are faced with the threat of antitrust injury... Neither the non-settling States' parochial interests nor their differing views as to national competition policy should be permitted to interfere with a settlement negotiated by the United States on behalf of the citizenry of the entire country."

To paraphrase, translate and mangle, what we're saying here is that it is the job of the Department of Justice to deal with antitrust and competition policy, and the job of the States to defend the interests of their consumers, and only their consumers. Thus, if the DoJ chooses to cave in by signing a toothless and worthless deal, then the States have no business objecting. Unfortunately, the massed attorneys of Redmond may have some kind of valid legal point here.

Onwards, though, to the States being in the pockets of Microsoft's vindictive competitors. "It is readily apparent... that the non-settling States seek to punish Microsoft and to advance the commercial interests of powerful corporate constituents - Microsoft competitors such as Sun Microsystems, Oracle, Apple and Palm." Support is co-opted from Judge Richard Posner, the mediator who failed to cut a deal a while back: States "are too subject to influence by interest groups," he later wrote, "that may represent a potential antitrust defendant's competitors. This is a particular concern when the defendant is located in one state and one of its competitors in another, and the competitor, who is pressing his state's attorney general to bring suit, is a major political force in that state."

One wonders what all those Microsoft lobbyists have been pressing for, who they've been pressing, and whether this is at all related. But onwards, again, to the dreadful, brutal, vindictive proposals themselves.

"Ignoring the instructions of both this Court and the Court of Appeals [contempt again], the non-settling States not only have decided to pursue all of the conduct provisions of the vacated judgment; they have also dramatically expanded those provisions and have requested numerous additional provisions." Oh, the outrage in those italicisations... "Many of these provisions are truly draconian in nature." And here we go with three examples.

By forcing Microsoft to disclose "without any royalty whatsoever all of the source code for the Internet Explorer components of Windows" the court would be "requiring Microsoft to place in the public domain intellectual property that Microsoft has invested literally hundreds of millions of dollars developing." Similarly, the auction of porting rights to Office would mean that Microsoft "would receive no royalty... other than the one-time price determined at the auction... extreme and draconian requirement... effective confiscation of Microsoft's valuable intellectual property..." (Just let the foam wash over you.)

This requirement, in any event, is ludicrous given that "the States abandoned their claim that Microsoft has a monopoly in their office productivity software when they amended their complaint in July 1998." This of course is not strictly true - the matter of the Office monopoly simply wasn't pressed during the trial.

Now we get onto the old chestnut of IE removal, which was argued over ad nauseam during the trial, with the addition of removal of the various other bits of stuff that have subsequently become inserted. "Section 1 would require Microsoft to do the impossible - remove critical software code from its operating system yet somehow preserve the functionality supplied by that software code. And Microsoft would be required to perform this impossible task for every feature of Windows that qualifies as a 'Microsoft Middleware Product' under the non-settling States' hopelessly vague and open-ended definition of that term."

One does kind of wonder what use Microsoft's source code, software blueprints and APIs would be anyway, given that what appears to happen is that the coders shove stuff in, then forget precisely where they put it, so can't figure out how to get it back out without breaking stuff. But we knew that about Microsoft development already.

Here, however, comes the summing up. "In many respects, the non-settling States' proposed conduct restrictions are no less extreme than plaintiffs' previous proposal to break up Microsoft... In requesting that Microsoft be required to make available to its competitors the source code for one of the most important features of Microsoft's operating systems and for Microsoft's Office suite of applications - some of the most valuable intellectual property in the world - the non-settling States' proposed 'relief' is tantamount to divestiture. By stripping Microsoft of its intellectual property rights, the non-settling States' proposal also raises serious constitutional and public policy questions."

So there you go, the whole system would collapse as well... ®

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