the best justice money can buy --Lessig suspended

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>>> the best justice money (and politics) can buy

    I really do not believe this --this is bought justice
    as appeals courts never, or at least rarely such as a 
    blatant in the case of a blatant error in a capital 
    murder criminal trial, interfere with a sitting federal
    judge.

    the damage is immense; it delays the first round of
    adjudication by at least 5 months. if I were Joel Klein 
    I would go for the jugular and file action for an 
    immediate divestiture of M$ including injunctions
    against operations and management by Bill Gate$ and
    Steve Ballmer. the appeals court would probably suspend
    the actions, but they would still be there and on the
    table. 

    Jackson at this point will be furious --hopefully he
    keeps total cool. the obvious next move on the part of
    M$ will be to have Jackson disqualified for bias. that
    will make 2 judges in the DC circuit who M$ has wasted.
    Royce Lambert refused to accept the 1994 plea bargain
    --obviously M$ would ask him to recuse if his name came
    out of the barrel; theoretically, cases are assigned by
    lottery --in reality, you can influence the choice of a
    judge as the cases are assigned at the time of filing by
    rotation. --M$ obviously is capable of shopping for a
    judge.

    at this point, I would say M$ has won the game. W98 will
    be released with IE4 as the desktop, complete with push
    channels and www.msn.com --at that point, Jackson --if 
    he is still the sitting judge-- will be forced to make a 
    bad law decision if he tries to block it on the 1994
    agreement: the product is 'integrated' --M$ had the 
    foresight to hoodwink the DOJ --Royce Lambert saw 
    through the smoke screen but the appeals court removed
    him from the case.

    so... we will have multiple choice of OS: M$ on Intel, 
    M$ on SGI, M$ on Alpha --and SUN goes down the tubes as
    they will never capitulate.  M$ will bury IBM with their 
    NT alliance with Ahmdal who clones all the IBM iron 
    --which is fading against the clustered servers. IBM 
    long since gave in on OS/2 versus M$ --it may figure in 
    their corporate strategy, but unless they are willing to
    update past Netscape 2.02 they will lose that as well
    --in fact you can no longer any of the IBM PCs with OS/2
    preloaded --except by special order: in quantity.

    Bill Gate$ for President?  might as well... maybe Lee 
    Harvey Oswald will come to the rescue.

Lessig appointment suspended
By Dan Goodin, C|Net
February 2, 1998, 6:40 p.m.  PT

A federal appeals court has immediately suspended the
appointment of a contested computer expert charged with
collecting and weighing evidence in the antitrust case the
Justice Department has brought against Microsoft.

In a ruling handed down late Monday, the U.S.  Court of
Appeals for the District of Columbia granted Microsoft's
request to halt, pending further review, the proceedings
before visiting Harvard Law School professor Lawrence
Lessig.  U.S.  District Judge Thomas Penfield Jackson
appointed Lessig a "special master" in mid December, giving
the computer and Internet law expert until May 31 to
recommend factual and legal findings in the high-profile
case.

The one-page ruling is a significant--but by no means
final--win for Microsoft, which repeatedly has objected to
Lessig's appointment.  In briefs filed first in district
court and then with the court of appeals, Microsoft
strenuously has opposed the designation of any special
master in the case, but has argued further that Lessig is an
inappropriate choice because he appears to be biased against
the software giant.

In a sternly worded order issued two weeks ago, Jackson
denied Microsoft's request, calling the allegations of bias
"trivial" and "defamatory."  Today's ruling by the court of
appeals is in stark contrast to Jackson's order, and may
indicate that the three-judge panel assigned to hear matters
in the case sees things in a different light.

Rather than permanently halting the proceedings, today's
ruling is an agreement only to consider Microsoft's
challenge to the special master--known in legal parlance as
a writ of mandamus.  In a sign that the judges may be
inclined to agree with Microsoft's arguments on the issue,
however, they handed Redmond an additional win by
immediately halting the proceedings scheduled to take place
before Lessig while the challenge is being heard.

"It is extremely unusual for a court of appeals to reach
down and stop what a district court has ordered," said Rich
Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady &
Gray.  "The court of appeals is saying, 'We're interested in
hearing more about this, and in the meantime, we're going to
put the special master on hold.'"

A Microsoft spokesman agreed.  "This is a very positive
step, but it's only one small step in a long process," said
Jim Cullinan.  "We look forward to presenting our evidence
to the appeals court as well as the trial court."

The court of appeals already had agreed to hear a separate
appeal, in which Microsoft is fighting a preliminary
injunction Jackson issued in December that requires
Microsoft to separate browser software from its Windows
products.  Today's ruling consolidates both motions into the
same April 21 hearing.  It also requires both sides to file
additional briefs concerning the special master challenge by
April 7. Moreover, the government must file its opposition
to Microsoft's appeal of the preliminary injunction by March
2, and Microsoft must respond to that brief by March 9.

Justice Department representatives were not immediately
available for comment.


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Tim May wrote:

> (The real issue is going to be Web servers. Whether Netscape can prosper
> in the world that is coming is unclear.)
[snip]
> Looks to me like Intel is the real winner here.

Apache currently represents over 50% of the web servers in use.  Even
Microsoft can't compete with that.  Microsoft's growth in web servers has
been largely at Netscape's expense.  So Netscape's move to the freeware
market is not unexpected, but it's a bit late; they should have been
pushing Linux/FreeBSD/etc to their NT customers long ago.

The issue of differing tactics of Intel versus Microsoft has a lot to do
with why Microsoft is getting scrutinized while Intel is largely being
left alone, despite their similiar market share.

The first difference is product quality.  I have an Intel Pentium which
has been working flawlessly for months.  Microsoft Windows, on the other
hand, can't go two days without getting screwed up in one way or another.
Intel has had two or three major flaws in their products in the last few
years (FDIV, F00F, and the fpu flag problem).  Microsoft gets blamed for
new flaws every week.  Guess which company I have a higher opinion of?
I am certainly not the only one who feels this way.

Second, Microsoft is rude, arrogant, and offensive.  They absolutely do
not know when to quit, no matter how much bad publicity it gets them.
Intel's behaviour hasn't been exemplary recently either, but they do know
when to back off.  Intel got in a little argument with Robert Collins a
few years ago, but once the bad PR started, they left him alone.
Microsoft, in contrast, has repeatedly harassed anti-microsoft web sites
(such as www.micr0soft.com) kicked anti-microsoft people out of comdex,
and so on.  Like Scientology, such tactics usually only increase the
attacks from critics.

Intel's handling of the "slot 1" was a major mistake.  Intel came off
appearing to be a bully trying to squash competition, which earned them a
lot of bad press.  Settling with Cyrix/NatSemi was a smart move (which
they should have done earlier).  But at least Intel knew when to cut their
losses and move on to other things.  Contrast that with Microsoft's
adamant, pig-headed pursuit of their bundling strategy; no matter how much
bad publicity it gets them, they keep doggedly trying to shove it down
people's throats.

So next time you're meeting with Intel management, remind them that if
they make quality products, their customers will be happy.  If they sell
lousy products and attack their opponents, they will get attacked back.

(And Intel- please stop telling us about how great your secret
proprietary bus interfaces are, we don't want to hear it, and it makes
you look bad.)

I very strongly disagree with Attila the Hun on his views about Microsoft.
But I won't argue the case here.

My comments below are just on some specific points. His general outlook I
am completely at odds with.

At 7:49 AM -0800 2/3/98, Attila T. Hun wrote:

>    at this point, I would say M$ has won the game. W98 will
>    be released with IE4 as the desktop, complete with push
>    channels and www.msn.com --at that point, Jackson --if

On this we agree. Microsoft cannot lose at this point. NT 5.0 and Windows
98 are presumably coming, and will be on 97% of all desktops.

The issue of Netscape's browser is mostly meaningless, anyway, from a
revenue standpoint. Navigator is now free for all users. Unless Big Brother
tells MS what it must sell its browser for--shades of the "Anti Dog-eat-Dog
Law" in "Atlas Shrugged"--it is likely to remain this way.

(The real issue is going to be Web servers. Whether Netscape can prosper in
the world that is coming is unclear.)


>    so... we will have multiple choice of OS: M$ on Intel,
>    M$ on SGI, M$ on Alpha --and SUN goes down the tubes as

I wouldn't be so sure about these choices, either! SGI is hedging their bet
on the MIPS processor family by porting to Intel processors and NT.  (I
predict SGI will drop the MIPS line for workstations and desktops, leaving
the MIPS chips for Nintendo 64 and other such controller-oriented uses.)

And Compaq has announced plans to acquire DEC, so the future of the Alpha
processor is even more in doubt than before. (News reports are that the
deal Intel made with DEC may be killed by this Compaq deal...and even if
both deals go through, Compaq is unlikely to deviate in a major way from
the Intel processor line.)

Even Sun has announced major plans to port Solaris to the Intel Merced
line. (They've long had ports...I mean a _serious_ port. Probably meaning a
move away from the SPARC line.)

So, we've got:

-- MS on Intel-based systems from all major PC makers

-- MS on Intel-based systems from DEC

-- MS on Intel-based systems from SGI

-- MS on Intel-based systems from H-P

-- Solaris and H-PUX (or whatever H-P's UNIX is called) on Intel Merced

And so on.

(I've left out the PowerPC, as it appears now to be limited solely to the
Macintosh market...even IBM and Motorola appear to have acknowledged its
failure.)

Looks to me like Intel is the real winner here.

(And even Intel's competitors in the "Intel compatible" market are
struggling, unable to make the chips. I've written about this several
times. Just yesterday National Semiconductor admitted that its Cyrix chip
unit was losing sales, falling further behind, having huge losses, and not
producing needed new chips. Meanwhile, PC makers who foolishly committed
designs to the AMD design are unable to deliver....CyberMax committed to
the K6 line and is now unable to ship its only product, as the limited
number of chips AMD can make are trickled out to other companies.)

As for Attila's calls to break up MS...could make Bill Gates immensely
wealthier, as he'd then have a piece of the 5 most successful software
companies!

(I assume Attila is not arguing for simply seizing his property and giving
it to others, or running it as a government company, or just padlocking the
doors....)

--Tim May




"National borders aren't even speed bumps on the information superhighway."
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^3,021,377   | black markets, collapse of governments.

-----BEGIN PGP SIGNED MESSAGE-----

on or about 980203:1222, in <v03102802b0fd25414459@[207.167.93.63]>, 
    Tim May <tcmay@got.net> was purported to have 
    expostulated to perpetuate an opinion:

>As for Attila's calls to break up MS...could make Bill Gates immensely
>wealthier, as he'd then have a piece of the 5 most successful software
>companies!

    after they extract the usual treble damages in antitrust
    litigation, Bill will probably retain significant
    assets, but he probably would not top the list of the
    very wealthy, and might not even make it.

>(I assume Attila is not arguing for simply seizing his property and
>giving it to others, or running it as a government company, or just
>padlocking the doors....)

    no, in fact, if there were a free market remedy for M$'
    monopoly, I would be in favour of it --and there is _no_
    free market remedy and failure to act promptly 
    conceivably wipe out all, or virtually all, of the 
    viable competitors.

    the purpose of antitrust legislation is solely to
    remedy an injustice caused by a private market segment
    which became a monopoly.  divestiture for M$ would
    generally be along the lines of AT&T except it would
    focus on divisions rather than regions; secondly, it
    would obviously restrict Gate$ involvement in more than
    one despite any stock ownership and might require Bill:

    a)  to sell all stock in units he does not control;

    b)  take his payout in stock from one unit only (less
        negative market); or,

    c)  he may not have enough left after Sherman Act 
        penalties to be a major stockholder --he might
        actually need to suffer through stockholders
        meetings like the rest of the CEOs.

    I would never advocate seizing assets for redistribution
    vis a vis Mugabe or whatever the despot's name is --what
    a waste-- if uncle Sam redistributed we would have
    Microsoft-Harlem, Microsoft-Watts, etc.  shit, I had to
    stop typing after the mirth of that thought!

    as for the government running _anything_ --how far do we
    need to look for the nearest government excess and total
    mismanagement, featherbedding, and corruption?  not far
    (you, Tim, on a non-clear day cant see very much from
    your hilltop --out here on the high desert ridges in So.
    Utah it is CAVU the vast majority of the time-- and I
    still cant see any as Feds are like Revenuers in KY).

    there are multiple issues:

    1.  Microsoft's almost good enough (for the market) 
        operating systems which probably should be 
        considered what we called firmware 25 years ago.  at
        this point >90% of the platforms run M$ in one form
        or another and as you acknowledge, SGI, DEC, and so
        on are all hedging their bets --which will become
        reality as soon as they open the floodgates. 

        in software, the sheeple follow the Judas goat to
        Redmond.

    2.  Microsoft "software"

        a)  office suite  --already 95% of desktop market

        b)  data base --maybe should be included in a) but
            Oracle, Sybase, IBM, etc have large installed 
            bases at a much higher cost per unit on servers

        c)  browser --certainly will be at 80% before year
            end as all OEMs so far have indicated they will 
            not cross M$ and switch. that leaves the rest of
            it up to the ISPs who could care less.

        d)  back office  --M$ moving in on this one real
            fast and it is now part of NT distribution-- 
            which then requires the browser and webserver
            for installation and maintenance.

        e)  web servers, firewalls, routers, etc.  --M$ is
            already getting the web servers with NT
            distributions and is poised to tackle firewalls
            and router dominance.  I question that they can
            ever configure NT on any hardware to do
            routing/switching effectively, efficiently, or
            competitively against dedicated hardware given 
            the new >1G switches.

    3.  M$ in cable systems.  cable systems are always cash
        poor from infrastructure expense.  M$ is buying in 
        and therefore influencing the choice of settops
        --and their format-- witness TCI. this further
        establishes M$ in the determination of standards
        --obviously to the detriment of everyone else-- and
        the FCC has mandated the boxes must be compatible
        across the board in a couple years and we all know
        who negotiates dirty and hard

        the only saviour in this one may be Time-Warner
        which so far is moving ahead with its 2way cable 
        system from Scientific Atlanta with a sparc chip,
        etc.  T-W has 2.5 million boxes on order and is
        planning extensive deployment 3rd quarter which 
        is at least 12 months before M$ can even beta test
        with TCI 

    4.  content...

        a)  msn which so far is harmless, but what would
            happen if Gate$ absorbed Assholes on Line?  or 
            really pushed MSN at POS and OEM.

        b)  msnbc which apparently still enjoys editorial
            censorship only from the usual channels of our 
            non-free press.

        c)  reference bookshelf in which the latest revision
            of the EnCarta encyclopediae described Gate$ as 
            a "philanthropist"  --cheap son of bitch only 
            coughed $100 million towards school internet as
            long as it was M$ product. he may have been
            better termed a misogynist (before he was
            married) given his terms of usage....

        content is where we really start to worry more than
        Bill's money, which has already bought influence: 
        the WSJ editorial page article by Bill striking back
        at the DOJ, the NYTimes column, the books, and the
        rest of the demigod worshipping media.

    Gate$' fortunes have been changing:  Gate$ now has for
    more enemies than his money can buy friends.  even the
    SPA has turned against him with their white paper on
    fair competition which is a direct shot across Gate$'
    bow --and Gate$' response was that their membership in
    SPA might not be renewed in August --economic threat. 
    The DOJ has expanded their scope and will probably file
    significant actions shortly (hopefully before the 21 Apr
    appeals court hearing)

    next are the states, eleven so far including NY, TX, IL 
    and CA where they have very definitely aggressive AGs. 
    and CA's is pissed over the sweetheart deal the CSU
    system gave M$ to supply everything as the "official
    vendor" of the CSU system which has 20+ campi and how
    many million students?

    complain about a McDonalds' generation?  shit, that's 
    only your stomach, not your mind --and at least there
    are other choices for food --I personally have never
    eaten at McDonalds; of course, that does not say much as
    I have never owned a television, either.

    we already have an M$ generation.  they all learned on 
    PCs and they all programmed to PCs and windows with
    their private APIs.  this is exactly what creating a
    positive feedback, self-enhancing market place does: 
    McDonalds grabbed their stomachs with their playgrounds,
    etc. and M$ twists their minds.

    BOTTOM LINE:  Gate$ manipulation, scheming, red-dog
    contracts, etc.  make Cornelius Vanderbilt look like a
    choir boy.  Gate$ style of management with Steve Ballmer
    as the heavy and Gate$ trying to cover his geekness as
    the "aw shucks" boy next door has had the curtain pulled
    to show what technically amounts to a legal "conspiracy"
    to dominate multiple markets, both vertically and
    horizontally.

    as such, M$ and their executives actions fall directly
    under the guidelines of part B of the Sherman Antitrust
    act which includes the usual penalties of divestiture,
    treble damages, and _criminal_ penalties.  secondly, M$
    and Gate$, if convicted of violating part 2, could then
    be construed as a "corrupt" meaning malicious intent

        the difference between misfeasance and malfeasance
        is that in the latter you were intentionally fucked

    which qualifies for RICO prosecution as well.  in 
    addition to the extremely severe criminal penalties, RICO
    does provide for confiscation of ill gotten assets
    --this would apply to Gate$ monetary gains, including
    his stock, which could be forfeited.

    frankly, I think it would be most amusing to see Gate$
    and Ballmer receiving the customary "3 hots and a cot"
    for such offenders and to need to work for a living like
    the rest of us when they earn their freedom.

    the fact that RICO could apply does not mean that it 
    will be trundled out --but it would be fitting justice. 

    I will never denigrate Gate$ determination to build M$
    and to proliferate the computer, which he did, a little
    too well.

    --but Gate$ crossed the line:

    Gate$' instinct set him on the path that competition
    means forcing everyone and their ideas (those that he
    did not steal, literally or figuratively) from the 
    marketplace --Bill can not compete; he must "own" the
    market.  William Henry Gates III expects to be crowned
    "William III" --see my rant on 16 Oct.  on DejaVu or:
 
      http://www.primenet.com/~attila/rants/gates/7a16-ms_monopoly.html

    not to be crass about it, but Gate$ has served his 
    purpose and outlived his usefulness --his defense
    against the DOJ, his further market actions while under
    attack, and his intent to trump the moot with Win98 are
    actions of a petty dictator; give Bill a shiny new
    uniform from a Napoleanic banana republic and let him
    prance around.

    any more of Gate$ not only becomes tiresome, but 
    hazardous to our health.  give me the hook...

    there is no free market remedy for M$' control of the
    market place as the consumer will not boycott something
    which a) costs them money do so; and, b) for which there
    is no ready substitute. the only alternative is to apply
    the anti-trust laws in the general interests of 
    society which does not mean government ownership or
    management.

    M$ stockholders may either make or lose money depending
    on the valuations the market assigns to each of the 
    divested divisions --but that is a risk you take in the
    market if your greed exceeds your wisdom. ask any VC, 
    whose greed is only exceeded by his fear.


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On Tue, 3 Feb 1998, Tim May wrote:

> 
> (I've left out the PowerPC, as it appears now to be limited solely to the
> Macintosh market...even IBM and Motorola appear to have acknowledged its
> failure.)

Unless I've missed some absolutely major announcement, IBM is betting on
the PowerPC in all their servers.  Well, at least in their RS/6000 and
AS/400, which is pretty much their entire high-end market.

The PowerPC never had a serious entry into the desktop market anywhere but
the Macintosh to my knowledge.


Ryan Anderson - Alpha Geek
PGP fp: 7E 8E C6 54 96 AC D9 57  E4 F8 AE 9C 10 7E 78 C9
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