Microsoft and U.S. Unable to Reach Antitrust Accord nytimes.com
The good gray Times' take on this:
Microsoft and the government had been exchanging proposals and counterproposals over the last week, under a carefully scripted schedule set by Judge Posner. The Justice Department sent its latest proposal to Judge Posner late in the week, and the judge passed it on to Microsoft. A lawyer who was close to the talks said Microsoft would not agree to the government's latest demands.
When Judge Posner saw Microsoft's counterproposal, he declared the talks dead.
There's a great deal of wailing and gnashing of teeth over this over on the other thread, of course. Leavened with the usual extensive legal expertise standard for the friends of Bill. It's all so unfair! Personally, it seems like deja vu all over again, just like the bait and switch negotiation before the suit was filed. As near as I can tell, this offer would have probably worked good for Microsoft in the pretrial negotiations, but after their brilliant legal performance on trial? Their negotiating position seems a bit weaker at this point. Methinks Bill is still acting as his own attorney here, and it shows.
An analysis of the Microsoft settlement proposal from Friday's NYT:
In Search of Loopholes in Microsoft's Proposal nytimes.com
Trial evidence showed that Microsoft built its browser, Internet Explorer, into Windows as a tactic to put its chief competitor, the Netscape Communications Corporation, at a disadvantage. But the browser war is over. Microsoft won. Industry studies show that Netscape's share of the market -- about 50 percent when the antitrust trial opened two years ago -- has precipitously declined since then, though the precise estimates vary.
"That was a great remedy in 1995, but now Netscape Navigator has been defeated; the battle's lost," said Steven Salop, a professor of law and economics at Georgetown University who has at times served as a consultant for some of Microsoft's competitors.
Right. As to the price list proposal:
Nicholas Economides, an economist at New York University, said he likes the idea "of having a uniform price list for all customers" to prevent price discrimination. But others see significant pitfalls.
Herbert Hovenkamp, a professor of law at the University of Iowa who serves as an occasional consultant for the state and federal governments in this case, notes that there are myriad ways Microsoft could continue rewarding friends and punishing others, even with a uniform price list.
The company could make special joint marketing arrangements with preferred customers, or give them special terms in technical-support contracts. "One of the things we know about pricing is that firms are extremely creative about evading price restrictions," Mr. Hovenkamp said.
Mr. Salop added that if Microsoft can't punish them with the price of Windows any more, they can punish them with the price of Office," Microsoft's suite of application programs that also holds more than a 90 percent share of its market. It is not a part of the current legal case.
Mr. Houck, who is now in private practice, raised an additional concern. Maybe Microsoft would no longer be able to use prices as punishment. Conversely, however, companies would no longer be able to negotiate the best price, "and I think that will lead to higher Windows prices overall," he said.
And on the API promise:
"This is a new development, something they haven't offered before," Mr. Houck said. "But it's extremely complex. They can bury the codes deeper and deeper. It's very hard to figure out what they are doing, and you will have to have a detailed regulatory regimen to keep up with this."
In fact, that is the chief complaint all of the experts offered about the whole package -- those that have been discussed in the media and others that are still not publicly known.
"In all of this," Mr. Salop said, "you're going to need ongoing cooperation from Microsoft, and you'll be unlikely to get it voluntarily." He and others said they feared that, trying to enforce the settlement agreement, the government would continually find itself back in court.
The writing was on the wall. Bill's still living in the glory of his '95 consent decree negotiations and the DC CIrcuit interpretation of it, but the world has moved on. Fooled me once, shame on you, fooled me twice, shame on me. A lot of concrete has been poured, legally speaking, and the holy DC Circuit may be cut out of the process all together, if a "speedy resolution" is desired. That'll be the most amusing part of arguments to come, Bill saying he wants a quick resolution while trying to make sure it doesn't go directly to the SC.
Cheers, Dan. |
