Gerry, thanks for the play by play and taking the time to post the whole thing.
I found the dichotomy between Wald and the other two somewhat familiar. For the last few days you and I and several others have been trying the positions on, in fact, pretty much in the same way as the judges here did: 2 judges following the Bork World/Chicago school Antitrust-as-consumer protection route, and one following a more traditional and activist trail.
I don't need to say which one I favor, with you I never know when you are trying on some devils advocate cloak that will drive me crazy. I presume that as a lawyer at least some of the time you are merely experimenting with the plausibility of arguments.
I take it that while the injunction is out, the district court is free to try again, perhaps following Wald's formulation. Meanwhile the DOJ is up to other things.
It's interesting.
You know, last year I did a short job for a month for a development tools company that folded up a few months later, as I knew it would after being there a short time (I quickly bailed out). The problem was, these guys had gone into business with no better plan than to get a few sales to show there was a market, and then to sell out to MSFT. Seriously. Imagine their shock when MSFT talked to them and then just hired their key people, before the product was really complete.
As Sun Tzu said (approximately), the best way to win a war is to simply sit with ovewhelming power on the opponents border. Eventually they will beg to surrender, and ransom themselves without a drop of blood being spilled.
That is what the software (and hardware) industry is doing left and right.
Perhaps the real hope for progress in this technology will lie overseas. Unfortunately, some other country will be selling the US whatever is new OS technology in ten years, I suspect. Half a million American technologists and professionals move to Europe and elsewhere every year now, and they will contribute to that.
Whether this court had a chance to staunch the flow of blood in the software business I don't know. There seem to have been insurmountable technical problems with the injunction, not to mention the pathetic consent decree.
Ah well, tomorrow's another day. And there are a lot of battles to come.
Cheers,
Chaz |
