Dan, I think the article you link to is an excellent analysis of the issues. I am heartened by the fact that the former head of the Justice Department investigation is supportive of the DOJ's current action. It may mean that my concerns about how this matter will turn out are unfounded.
Nevertheless, I find Mr. Miller's statement puzzling:
"Based on what we know today, I think [the government] should be able to make [a] showing" that the products are distinct," said Sam Miller, a former Justice Department lawyer who headed the original Microsoft investigation. Miller, now at Folger Levin & Kahn in San Francisco, added that the arguments laid out in the brief "are the traditional ways courts define what is a separate product, and looking at the evidence available, I would think that the government would be able to prove those points."
Why all the qualifications?
Why does he not just say unequivocally that the Consent Decree clearly prohibits the kind of conduct Microsoft is engaged in?
What does he mean by "ased on what we know today," and "looking at the evidence available"? Known by whom? Available to whom? Known by him? Available to DOJ or to the general public?
It's hard to tell from these printed statements what Mr. Miller really thinks of the government's case. Maybe he's very enthusiastic, and the twinkle in his eye, bounce in his step and emphatic gesturing just don't come through in this news article. Or, maybe he's just being cautious even though he thinks the government's case is strong.
What I read from this statement is that Mr. Miller feels the government can put on a prima facie case. However, he seems more guarded about the ultimate outcome. And those statements about "what we know today" and "available evidence" bother me. |
