Crime #1: bullying boxmakers by forcing them to pay per-unit prices for the MSFT OS on all boxes built, even if some of these shipped with a different OS. Threatening to withhold the OS or favourable pricing on the OS if boxmakers didn't toe the line, i.e. if they started building Linux boxes or network appliances that didn't use an MSFT OS. My assessment: if this isn't illegal, it ought to be. Mind you it's OK if you're not a monopoly, which MSFT had not been officially ruled to be until recently. Reasonable remedy: injunctions restraining the scope of business arrangements between MSFT and boxmakers.
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First, violation of anti-trust law is not in and of itself a crime.
Second, box makers are not "consumers", they are not protected under the anti-trust laws.
Third, software developers are not "consumers", they are competitors.
Fourth, A "copyright" or "patent" IS a legal monopoly. Anti-Trust laws do not "trump" copyright laws. The best 'recent' example of this is Xerox.
Fifth, a manufacturer can charge different rates to different of its distributors depending on a number of factors, such as size of the order, effeciency of the distributor, and a number of other valid business reasons.
From the microsoft brief:
"Plaintiffs [DOJ] rely on Image Technical Services, Inc. v. Eastman Kodak Co., 125 F.3d 1195 (9th Cir. 1997), cert. denied, 523 U.S. 1094 (1998), and Data General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147 (1st Cir. 1994), to support their contention that Microsoft's exercise of its intellectual property rights may violate the antitrust laws. (Pls. Reply at 28.) The antitrust laws, however, do not negate the rights of copyright holders. See Intergraph Corp. v. Intel Corp., 195 F.3d 1346, 1362 (Fed. Cir. 1999). In Kodak, the court found "no reported case in which a court has imposed antitrust liability for a unilateral refusal to sell or license a patent or copyright." 125 F.3d at 1216."
The DOJ's case, politely put, is polemic legerdemain.
Duke
I will post more from Lessig's Amicus Brief when I get some time. |
