"Cutting off a competitor's air supply, while hard edged and legal for non-monopolies, is illegal for MSFT. Adding a browser to an operating system is legal for Apple and IBM and illegal for MSFT. "
This is exactly what the court of appeals held WAS legal. That was the very issue that was before it, and in 1998 it ruled in MS's favor.
Is this the "clear cut" violation of anti-trust of which you speak?
And further, when you say "they behaved illegally" you must as Judge Jackson, must, give an example, based on competent facts submitted IN COURT. Not rumor, innuendo, unproven allegations, hearsay, and evidence of the crime of
.........."General Badnastyness".
This is why the fact that there are no page references in Judge Jackson's opinion, tying the conclusions to the facts, becomes very important.
Illegal activities have "elements"; a sort of check list with 200 years of case law for every item.
Here is an interesting example:
First, the law may be that if an addition improves your software, it is not relevant that it may put someone else out of business. That's life.
If you stole it, that is the crime of theft, not antitrust. If you copied it, that is the crime of copyright infringement, not antitrust. It may be bad, it may be nasty, it may even violate some other law, it may be leaked to the press in an illegal effort to win public support and to attempt to destroy the Defendant, BUT IT IS NOT A VIOLATION OF THE ANTI TRUST LAWS.
So, the DOJ changes the argument, they try to show that MS added the browser to "Cut off Netscape's Air Supply" They are trying to support the theory that MS is a bad boy, and therefore SHOULD BE PUNISHED, even tho what they specifically did WAS NOT ILLEGAL.
So, they haul out Barksdale to prove that Alchin said this terrible nasty thing about a competitor that was out to destroy Microsoft,
And what does Barksdale testify to? "No, I didn't actually hear Alchin say it, BUT I DID HEAR LARRY ELLISON SAY IT!!!!"
WHOOOPS!!
See? As to Alchin, that's what is called "hearsay", it is not creditable evidence, it probably is not even admissible.
But even so, If they had proved it, where is the harm to the consumer, where is the case law that says that INTENT, not action is a crime.
We don't have thought police, and I got a browser for free, and I could use that browser to download another browser.
Or in the original Latin Legal Phraseolgy:
..........Negative Harmundo Consumero . |
