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The Back Page
by Bryan Chaffin

Microsoft Waltzes The Next Step In The Dance Of Death (Avoidance)
August 10th, 2001

Ol' Wily Microsof'. Them crafty coders from way up'n aroun' Redmon' is just havin' theyselves a field day wi' them judges and whatnot. Hmph! Them judges is about t' have they own comeuppance, try n' mess wif' the likes o' ol' Slick Willy Gates! Why, no one what e’er stood up t' Willy an' his team o' hooligans e'er came out ta' better fer it! Lotus, them fruity fellas outta Californee, hell, even ol' Blue got th' pants whupped outta 'em when they crossed ol' Microsof'! Fat chance a pack o' ol' judges an' whatnot gonna do no better!

Heeeeeeheeeheeehehe! Thar's gonna be a hangin', sure n' if my name ain't Sneaky Pete!

Sneaky Pete from somewhere "out West."

Microsoft's latest move in the Antitrust Dance Of Death (Avoidance) has been choreographed, rehearsed, and performed. The company announced on Wednesday that it would be appealing the entire lower court ruling that the company was a monopoly to the highest in the land, the US Supreme Court. This came two days before the US Court of Appeals District of Columbia was scheduled to return the remedy phase of the trial to a new lower court. The appellate court had vacated ("vacated" is not to be confused with "overturned") the remedy set forth by Judge Thomas Penfield Jackson due to the bias he displayed against the company during the remedy phase. In other words, while the appellate court vacated the remedy set forth by Judge Jackson, they kept intact the basic decision that Microsoft was an illegal monopoly. Microsoft would like that little aspect of this case thrown out as well.

In addition, the company has asked the appellate court to hold off before sending the remedy phase back to a lower court. How long should they wait? Well, until the US Supreme Court either turns down Microsoft's petition or that Court hears the case and makes its decision. That should only take a year or two. Maybe longer. Seems reasonable, no?


This is a disgusting delaying tactic by Microsoft. Mind you, it's legal and I would never seek to have Microsoft's due process rights taken away. For one thing, two wrongs do not make a right. For another, it would stain the outcome of this trial in the same way that the FBI's bungling of all that evidence in the Timothy McVeigh trial will forever stain his execution. Fortunately, Microsoft and I are kindred spirits on this, because the company is also looking out for the integrity of the US judicial system. This is from a statement issued by the company:

"The court of appeals' deference to the district judge's findings of fact in this important, highly visible case despite the appearance of partiality created by his secret discussions with reporters can only erode public confidence in the judicial system."

Thank the gods that Microsoft is only looking out for the well being of the very system it so mocked during the original trial. Staged and faked demonstrations, manipulated evidence, selective memories... Yepper, Microsoft is all kinds of concerned about the integrity of the US judicial system. Please note the sarcasm I left dripping all over that.

My only real question is who in the heck did the people that wrote, approved, and issued that statement think would buy that load of malarkey? That may be a silly question considering the fact that Microsoft makes its living selling Windows, of all things. Obviously these people are used to dealing with people that will pay handsomely for big stinking piles of malarkey every day.

In any event, this move is about one thing, and one thing only: releasing Windows XP on or before October 25th. If it could be released tomorrow, Microsoft would. That is the only thing MS cares about right now because Windows XP is the company's next step towards collecting monthly tolls from its users, moving its software to a rental scheme, and illegally leveraging Windows’ monopoly position to control new markets such as the digital camera market, digital music, video streaming, and everything else the company has noticed someone else thinking about.

For the short term, the company needs the Wintel Horde to buy Windows XP in order to maintain its ever-increasing revenue. It couldn't make Windows ME or Windows 2000 (in all its forms) enticing enough for most of its customers to purchase, so Windows XP has been rolled out as fast it could be smooshed into a little ball and pushed off the highest hill in the land. If the DoJ, Senator Schumer, the 18 states’ Attorneys General, or any of the numerous consumer advocacy groups who are asking for an injunction to keep Windows XP from being released should succeed, the company is going to be awash in a quagmire of low sales.

Can't have that, hence the petition to the Supreme Court. You see, Microsoft is sacrificing a long-term legal strategy in order to gain a long term tactical advantage in the market place. If Microsoft were to appeal its antitrust conviction *after* the appeals process ran its course with the current court, it would effectively gain 2-3 years of time, possibly longer, before anything was ever done. If they did that, however, Windows XP might be delayed.

Instead, the company is appealing now, sacrificing the greater legal delays, in order to ensure that Windows XP makes it to market NOW. Once that cat is out of the bag, the myriad of nasty ways that Microsoft is looking to generate monthly fees from the millions of pinheads who choose Windows will be out of the bag too, and likely never stuffed back in. At that point, breaking up the company will have little effect on the core OS business, and MS can trudge merrily along.

To back up this idea, it isn't even likely that the Supreme Court will accept this case, as it seldom takes cases that have been unanimously decided by an appellate court. In other words, as a long-term legal delaying tactic, appealing now is the worst possible choice. It seems that Microsoft doesn't really care as long as it can get XP out the door.

In some ways, I hope that Microsoft succeeds in releasing XP. I think that it is going to be received as badly as Windows ME and Windows 2000. More importantly, I think that once evidence of the effect of the OS's attempts to dominate even more markets enters the public record, the long-term breakup of Microsoft will be ensured. In many ways, Windows XP equals the sum of all of Microsoft's previous efforts to leverage Windows’ monopoly power into new markets. XP's release could be the death of Microsoft, as we know it today. That would be the ultimate of ironies.

On another ironic note, Forbes reported yesterday that the DoJ just signed a US$14 million deal to equip many thousands of work stations with, now wait for it, Windows, Office, and other Microsoft software. This includes the antitrust division and the office of the Attorney General, both of whom are actively attempting to kill the company.

In a related bit of news, the Wall Street Journal published an excellent report on the Bush administration's antitrust chief. That article paints a picture of a man who is hell bent on pursuing antitrust efforts based on merit alone, and that he plays by the book. Indeed, so far he has been very aggressive in his pursuit of Microsoft, and indicates in this article (through implication) that he feels Microsoft clearly harms the consumer. This has made me far more confident in the eventual outcome of this trial than I have been in months.

began using Apple computers in 1983 in a high school BASIC programming class. He started using Macs in 1990 when the Kinko's guy taught him how to use Aldus PageMaker, finally buying a Power Computing Power 100 in 1995. Today, Bryan is the Editor of The Mac Observer, and has contributed to the print versions of MacAddict and MacFormat (UK).

You can send your comments directly to him, or you can also post your comments below.

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