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To: Gerald R. Lampton who wrote (23540)	11/12/1999 7:44:00 AM
From: Bearded One	Read Replies (1) \| Respond to of 24154

Gerald, welcome back! Question: What do you think of the possibility that the judgement against Microsoft is going to be extra harsh due to the judge being pissed at the company? I've heard the argument that that is not fair. I used to believe that, but now I'm not so sure. The judge is allowed to take into account the character of the people running the company, right? And if they act the way they did to him, well, that says something about how much they'll go along with conduct remedies. I personally don't want Microsoft broken up. I want them to publish their source code, which can be thought of as the 'ultimate' in publishing their APIs. I want open agreements with vendors and no technology purchases. Then let the private sector deal with punishing them monetarily.

To: Gerald R. Lampton who wrote (23540)	11/12/1999 7:45:00 AM
From: Harvey Allen	Respond to of 24154

Jerry- I agree. Unless the findings of Law call for an even harsher remedy. Harvey P.S. As a non-lawyer I'm beginning to appreciate the values of the law profession. I can see Judge Jackson's wonderment at watching a master like David Boies practicing in his court. Nobody dozes when David's working.

To: Gerald R. Lampton who wrote (23540)	11/12/1999 10:11:00 AM
From: Daniel Schuh	Read Replies (1) \| Respond to of 24154

Legal Experts Assess Microsoft's Options for Appeal nytimes.com Welcome back, Gerald. Before getting to the NYT piece of the day, I got to ask what you meant here: I'm also going to go out on a limb and state the following about the DOJ's case as proven and the facts as laid out in the Judge's findings: Neukom is right. You mean, I presume, right in that "the DOJ's case is a 'monopoly maintenance case' for which structural remedies are inappropriate." The alternative being "conduct remedies", I guess. Do you want to say more about what "monopoly maintenance case" means? Is Neukom inviting DoJ to help in maintaining Microsoft's monopoly? (<VBG> I guess, or maybe LOL, I think :-) is out of style). Ok, from the above article, a long bit on possible "conduct remedies": More moderate sanctions would require significant changes in Microsoft's behavior. But the company has shown some willingness to discuss them in earlier rounds of settlement discussions, according to people close to those talks. One recommendation, they say, is what is known as the "clean Windows license." This would involve opening up Microsoft's secret contracts with personal computer makers. Microsoft, they say, would have to publish its price lists so that all comparable PC makers pay the same price to license Windows. Volume discounts, as in any business, would be available. But Microsoft's "market development agreements" -- sometimes running over 100 pages -- would have to offer the same terms to all. A key part of the government's case is that PC makers that favored Microsoft software were rewarded with lower Windows prices than those who promoted or distributed the products of Microsoft's rivals. "It may be regarded as a mild remedy at the moment, but if you look at the judge's findings, so many of Microsoft's transgressions and so much of its ability to abuse its market power goes away with a clean Windows license," said Robert E. Hall, an economist at Stanford University. The other instrument of Microsoft's control of the industry, according to the government, has been how it has used its technology: giving preferred access to friendly companies and denying access to rivals like Netscape. Indeed, the narrative of the government's case begins with Netscape trying to obtain access to the links that enable other companies programs to run smoothly on the Windows operating system, known as application programming interfaces. Microsoft maintains that it already publishes these and says the notion of "hidden APIs" is an industry myth largely created by its rivals. [sarcastic aside: yeah, like Mark Andreesons "phantastical inventions" about the famous horse head meeting, which to my recollection was confirmed by others, and where Microsoft never even attempted to present their own version] But one possible sanction mentioned by antitrust experts, would be to force Microsoft to publish these technology interfaces to Windows and appoint an independent body to monitor that disclosure. Microsoft has never offered to take such a step in settlement discussions with the government, according to people close to the talks. Yet antitrust experts say that after Jackson's powerful findings against Microsoft, the company has to put something new on the table, if it has any chance of interesting the government in engaging in serious settlement talks. "If it's an important part of the political process, a well-administered technology disclosure requirement could make a lot of sense and would not run the risk of doing a lot of economic harm, as the most drastic sanctions would," said Hall of Stanford. Microsoft is not saying what it might be willing to do, but providing assured access to its technology would be preferable to being forced to auction it off or give it away. It would still own its own intellectual property, but the terms of access for the rest of the industry would be open and clear-cut. Of course, after Bill sneered in the face of the '95 consent decree the moment it was signed, and after the Microsoft bait and switch tactics on negotiating just before the current suit was filed, negotiating any of the above is going to be, uh, problematic. The other thing I wonder about, which the NYT article goes into a bit, is this "findings of fact" vs. "findings of law" business. I have a general impression about legal matters that simple things like that aren't as foolproof as one might think. Cheers, Dan.