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Technology Stocks : How high will Microsoft fly? -- Ignore unavailable to you. Want to Upgrade?

To: Hal Rubel who wrote (8295)	6/5/1998 1:19:00 AM
From: Daniel W. Koehler	Respond to of 74651

Hal <<The Constitution is generally recognized as a body of general principles and not as a specific legal codex. >> 1. Not hardly. There are two schools of thought on the Constitution - strict constructionist and loose constructionist. You take the loose constructionist view as an axiom. You presume to be true what you are trying to prove -, i.e. you beg the question. "Generally recognized" is specious authority. The strict constructionists maintain that, since the general welfare clause is in the Preamble to the Constitution - not the corpus of the document, it lacks substantive authority . I agree. General welfare theory is vague to the point of being arbitrary. The dictum that "that which explains everything explains nothing" applies to this reductio ad absurdum you espouse in the your general welfare argument. General welfare has been the loophole used by legal sophists to justify everything from the modern welfare state to income redistribution under the tax code. All seem to share the same Marxian "From each according to his abilities, to each according to his need" philosophy. 2. With respect to MSFT, I remain unconvinced that the Government's case has any merit - other than as a shakedown device. The government's two main lines of attack are a."Exclusive Selling" under Section 3 of the Clayton Act is (CPQ must install IE as the default browser ) is easily defeated by a number of arguments.First, no sale has occurred merely a license, over which MSFT retains rights it may assert. Second, the end user can install any browser he wishes by disabling IE. Where is the exclusivity? b. "Predatory Pricing" (giving away the browser) . First of all, the history of abuses giving rise to these statutes dealt with commodities where the price was driven below cost in certain markets to eliminate local competition with the prices then being raised to obscene levels. Remember the Sugar Trust ? First of all, an OS is not a commodity ( the definition being fungible goods). An OS is intellectual property having a proprietary nature. Hardly fungible goods like sugar or wheat. Second, $45-85 dollars for an operating system/browser is surely not obscene price given alternatives in the market (Apple OS, Unix, Linux, etc.) Third, local market competition was not targeted for elimination intentionally. What is the local market - this is a global product. Finally, NSCP had the higher market share - not MSFT. MSFT bundled IE to its own detriment when it could have charged an extra $40-60 bucks. I guess one could call it predatory pricing if one preys on one's self! What a unique theory "They did it, your Honor, to hurt their own bottom line in order to gain competitive advantage against their competition which had a higher price and 80% of the market at the time. Hence MSFT is guilty of predatory pricing ." << Very often bodies of law are mere formalizations of the numerous independent legal precidents that preceeded them. I am sure there were numerous anti-trust rulings before the Sherman Anti-Trust Laws. >> If you have any citations of these legal "precidents" (sic) that "preceeded" (sic) and were codified in the Sherman Act, I would be grateful if you would forward them to me. BTW, for what it is worth, it's "precedent" (not precident) and "preceded" not (preceeded) . An honest mistake. Thought you might like to know. I know I would were our roles reversed. I do appreciate your response, Hal, and am only trying to point out why I think the government is out of line in this case. Ciao, Daniel