Posted on 11/16/2001 1:20:58 PM PST by Jean S
WASHINGTON (AP) - The Justice Department sought Thursday to convince the judge in the Microsoft Corp. antitrust case that its landmark settlement with the software giant will help consumers and rein in the company's illegal business behavior.
In a 68-page court filing, Justice lawyers defended the settlement they negotiated between Microsoft and nine states. Critics, including Microsoft rivals and some independent antitrust experts, have said the agreement is inadequate. They have charged that the company will be able to bypass many of the sanctions because of vague language.
But in the filing, government lawyers assured the judge that the settlement "will eliminate Microsoft's illegal practices, prevent recurrence of the same or similar practices and restore the competitive threat" by rival companies to the dominant Windows operating system.
The government also sought to clarify a part of the settlement that allows Microsoft to keep secret information that might broadly violate the security of its anti-piracy technology, which prevents the illegal copying of music or movies. It is considered especially important and lucrative as entertainment increasingly is delivered in digital formats.
The government told the judge that Microsoft must disclose to competitors all the capabilities of its anti-piracy music technology under the latest version of Windows, called XP. The government said that mandatory disclosure "makes these features available to competing software and hardware developers."
The government said it will require Microsoft to live up to its promises through "strong enforcement provisions" and can seek criminal penalties and civil fines if the company violates the deal.
Microsoft Chairman Bill Gates defended the settlement as tough but one that "we're really pleased to have." Nine other states led by California, Iowa and Connecticut rejected it and will ask U.S. District Judge Colleen Kollar-Kotelly to impose tougher penalties during hearings next year.
"Despite the restrictions and the things in this settlement, having the uncertainty removed and the resource-drain removed we think is very positive, not only for Microsoft but for the industry," Gates said in an interview Thursday with The Associated Press. "We're hopeful to get it put behind us."
The judge, who must approve the settlement, tentatively set a hearing for February to review the deal. She has not signaled publicly how she might rule but has pressed the sides strongly to negotiate an end to the case.
Microsoft and the Justice Department have suffered during such reviews before. Another judge, Stanley Sporkin, now retired, scrapped a proposed settlement between Gates and the government in a closely related case in February 1995, when Sporkin determined the decree was not in the public interest.
The department promised in its 1995 settlement that it would "end Microsoft's unlawful practices that restrain trade and perpetuate its monopoly power." Yet as Sporkin rejected it, he complained that, "simply telling a defendant to go forth and sin no more does little or nothing to address the unfair advantage is has already gained."
A U.S. appeals court in spring 1995 overturned Sporkin's decision, saying that he relied on inappropriate evidence, and removed Sporkin from the case.
Another federal judge, Thomas Penfield Jackson, approved that settlement in August 1995. But Jackson himself was removed from the case this year by the same appeals court for "flagrant" ethical violations, after he secretly granted interviews to reporters during the trial.
Gates expressed hope again Thursday that more states will agree to join the settlement. "We really don't know exactly what will happen with the states. We hope they come in, and we're just moving forward," he said.
Microsoft also asked the judge on Thursday to formally recognize Charles Rule, the former top antitrust official during the Reagan administration, as one of its new lawyers. Microsoft hired Rule in the earliest days of the trial as an adviser, and he was pivotal in negotiating the latest settlement with the government.
Rule, for years, has been personally acquainted with Charles James, the new antitrust chief in the Bush administration.
The settlement requires Microsoft to disclose technical details to help rivals make their products work more closely with its monopoly Windows operating system and to give an oversight panel full access to its books and plans for five years. It also bans exclusive contracts with computer makers that put rival software vendors at a disadvantage.
"Your honor this agreement means if microsoft violates the
terms the court will have the authority to look at
bill gates sternly and wag your index finger and say stop that."
"Your honor we have achieved corporate peace in our time."
"Your honor this is really tough. please stop laughing."
"No your honor this paragaph does not mean you are bill
gates bitch. Yes I know it says that in black and
white. The word judicial bitch is open to interpritation"
"No your honor the other judges will not call you wussy boy."
"Your honor, just think of your legacy"
Translation: blink
[[shudder]]
I just got that feeling I used to get when watching Clinton speak.
Seriously? You don't know the reason for this?
Because prosecutors are political creatures. Theoretically, the judge is an 'unbiased' person representing the 'public good', which the prosecutors are not. The judge plays the role of 'plaintiff', in place of 'the people'.
The last time a voluntary settlement was reached between the govt and MS, the judge nixed it. Then the MS-friendly Appeals court -- yes, the same one -- removed that judge. The new judge, Penfield Jackson, okayed the decision. He was later, of course, removed himself.
New to all these legal concepts, eh?
The theory goes that the judges are appointed for a long period of time, and are therefore not subject to being fired for making a politically unpopular idea. They're certainly more independent than Prosecutors, who can be fired today if the boss gets a big enough payoff from the criminal facing prosecution.
Prosecutors, of course, have to do what they're told, or else.
It's a good theory. Of course it doesn't always work, but in general it holds true to form.
Nope. That's a lie -- unless you never actually looked and just don't know any better.
From the appeals court decision:
Thus, although Microsoft alleged only appearance of bias, not actual bias, we have reviewed the record with painstaking care and have discerned no evidence of actual bias.
And
Although Microsoft challenged very few of the findings as clearly erroneous, we have carefully reviewed the entire record and discern no basis to suppose that actual bias infected his factual findings.
The judge said a few things to the press that "sound bad", but in no way acted biased against MS.
And *that* is the truth.
Again, from the appeals court decision:
The earliest interviews we know of began in September 1999, shortly after the parties finished presenting evidence but two months before the court issued its Findings of Fact.
The judge was stupid enough to think he could be honest with reporters about what he had learned of MS, and said some uncomplementary things about MS to the press, because of MS's conduct.
Again, from the decision:
We recognize that it would be extraordinary to disqualify a judge for bias or appearance of partiality when his remarks arguably reflected what he learned, or what he thought he learned, during the proceedings.
And
Disqualification is mandatory for conduct that calls a judge's impartiality into question.
It was mandatory once MS asked for it. MS is judge shopping, in the finest old tradition.
Thank you for the opportunity to make my case.
Dude -- read the appeals court decision. You're blindly incorrect.
Check the post to Shrub2000, above. The first interviews with Auletta were *after* all evidence was in. The judge was unbiased, and made up his mind on the basis of the evidence. He found MS had done bad things, and said so.
MS complained, and had him removed. Judge shopping.
You really need to read these things, arguing without facts won't likely increase your credibility.
Frankly, I have to still point out that Judge Jackson did something wrong. He should not have commented on the case, period. This is pretty serious misconduct on his part. Why didn't the states try to defend him in the hearing?
Oops, sorry.
The states and all *did* defend him rather well. But the appeals court decided that removal was mandatory if *any* appearance of bias developed, even if no real bias was evident.
That's actually the way I prefer it.
The judge should have waited to give the interviews.
Um -- so the appeals court's decision that he wasn't biased doesn't move you at all?
See, my point is, I looked at the evidence and came to a conclusion. That conclusion is supported *by* the evidence, and was supported by the appeals court and Supreme Court.
You are arguing that the facts do not matter, and that there was a biased judge. You refuse to even look up the facts, and never even read the conclusions of the court to see what the truth is -- even when your errors are pointed out.
Now which position is 'Clintonista'?
You defend blindly. I defend with quotes from the legal record.
Remember debating with Clintonistas? You post evidence, laws, all that, and they just blindly say it was a frame up, their guy is innocent, this is all about 'sex'?
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