Dan, Et Al — I Told You So

Remember back to June 2001 when the Appeals Court in the Microsoft case reversed and remanded Judge Jackson’s proposed penalties against Microsoft? At that time, people who should have known better (Dan Gillmor comes to mind) went around grasping at straws that this was somehow a loss for Microsoft.

Of course, here the more sensible view prevailed,

As for the remedies, they’re headed toward Microsoft but what are the odds this case will ever go before another judge? Very, very low. With the Appeals Court making a breakup impossible, Microsoft now has the leverage it needs to reach an advantageous settlement. This is a prospect the Justice Department is going to be very amenable to since it seems clear that John Ashcroft and the rest of the Bush administration don’t want this case.

This whole thing will almost conclude with a slap-on-the-wrist-fine and some meaningless agreement in which Microsoft promises not to enter into exclusionary deals with ISPs and to stop threatening competitors like Intel who want to enter into deals with Microsoft’s competitors.

Of course there was a settlement that amounted to a slap on the wrist, and today a judge upheld that settlement agreement with only minor changes.

The interesting thing about Judge Colleen Kollar-Kotelly is how far she went in agreeing with critics of the entire lawsuit. Groups that were out there claiming that this was a classic abuse of antitrust to benefit MS competitors were derided as sycophantic spokespersons for MS who didn’t have a clue, but here’s Judge Kollar-Kotelly strongly criticizing the states and others for just this problem. Here’s what she wrote about Sun’s Scott McNealy’s claim that Microsoft’s failure to include a JVM was evidence of monopolistic behavior,

The incompatibility of Microsoft’s JVM is a non-issue…Mr. Green’s testimony is revealed as little more than an attempt to advance Sun-compliant Java technologies through this proceeding.

Dave Winer doesn’t get it either, insisting that the decision is bad because it harms Microsoft’s competitors. But antitrust was never intended to help a company’s competitors, and to suggest that it should do so is a complete perversion of what little justification there is for antitrust laws in the first place.


Rivals come up short in decision. Declan McCullagh, CNET.Com, November 1, 2002.

Talk About People Without Ethics

Dave Winer’s been going on and on about journalistic ethics, but how about getting some ethics of his own? Winer has a habit of talking about things that he doesn’t understand, but why was he dissing a site that he apparently didn’t even read?

In this post he disses the so-called warbloggers, apparently jealous of the attention they’ve been getting from the media,

While we do bash egos from time to time in TechBlogLand, we’re getting a lot more work done these days, using weblogs as the venue for sharing stuff. I like to tell the reporters that SOAP and XML-RPC, RSS and OPML could never have happened without weblogs. I asked the reporter if they could ask Glenn Reynolds to tell them when Hollywood is screwing computer users, or if they ever come up with a solution to the Microsoft antitrust case. And by the way, whose software do you think they use and do they even know how to use it? Andrew Sullivan just discovered permalinks a few days ago. Heh. Believe me there’s more work to do, and it’s going to be programmers and information mavens that lead the way.

BTW, I have something of an advantage, in that my blog predates the media rage that centered on the Pyra crowd, so I’ve been through this before. Someday Glenn Reynolds will be shocked to find out that he’s not the darling of the bigpubs anymore, then someone else will be blustering how they made him obsolete. It won’t be any more true then than it is now. This is meta-news. Boring.

At the time I thought the line about Hollywood and Microsoft was odd since Reynolds has indeed talked about intellectual property issues in the past, but I didn’t post because I’d filled my anti-Winer posts quotient for the month. But Winer’s post today is really outrageous,

OK, I admit it — I’m clueless.

No kidding!

What exactly is a warblogger?

I’ve been reading Glenn’s site every time it updates for the last few days. I don’t see a warrior. I see a mediator.

He links to differing points of view. He cuts through the rage and says “That’s not anti-Semitism, Jason. It’s just opposition to Israel’s policies.”

Is Glenn a warblogger?

If so — where’s the war?

So, Winer insulted Reynolds, Sullivan and other warbloggers without bothering to even read their sites. And he’s criticizing Dan Gillmor’s committment to journalistic ideals? Please.

The Gates Comedy Show

Bill Gates is, of course, testifying in person during this round of the penalty phase of the Microsoft antitrust trial. He probably should have stayed home. According to the Associated Press, Gates actually testified today that the penalties proposed by the states could limit Microsoft’s ability to fix security holes in its Windows.

Gates was referring to a proposal that would require Microsoft to continue selling the previous version of Windows after it releases a new version. Gates said Microsoft wouldn’t be allowed to recall or replace a version if a major security hole is found.

First, that last sentence shoudl read that “Gates said Microsoft wouldn’t be allowed to recall or replace a version when a major security hole is found.”

Second, it is difficult to believe that security in Microsoft products could get any worse. The implication of Gates’ comments are that security holes probably still exist in previous versions of Windows such that fixing the damn things would require major rewrites of parts of the OS.

That Gates sure knows how to inspire a sense of wellbeing and security in us Windows users.

Reason Gets to the Bottom of the AOL/Microsoft Lawsuit

Reason magazine gets to the bottom of AOL’s recently announced antitrust lawsuit against Microsoft. The magazine’s weekly e-mail newsletter neatly sums up the innovative legal theory behind AOL’s lawsuit,

AOL Time Warner filed an antitrust suit against Microsoft claiming that Netscape, which AOL bought in 1999 for $10 billion, was wrecked by Microsoft back in 1995.

The funny thing is that AOL Time Warner is proof positive that merely being big and controlling a ton of marketshare does not a profitable company make. AOL Time Warner is bleeding money at the moment. A nice lawsuit against Microsoft is a pretty good way to focus stock holders’ attention on tertiary matters.

I Really Hate Slashdot Sometimes

In 1997, ABC “reporter” Cokie Roberts blasted the Internet in a column she wrote with her husband, Steve. Among other things they complained about was that (surprise) the Internet didn’t allow for any mediation of views by responsible folks.

To us it [unmediated web communication] sounds like no more deliberation, no more consideration of an issue over a long period of time, no more balancing of regional and ethnic interests, no more protection of minority views.

Jon Katz, who at the time was writing for HotWired, turned around and ripped on the Roberts’s saying,

The column serves as a window into the dark and disconnected heart of Washington journalism, a culture that fiercely defends its own freedom but has mixed feelings about everyone else’s.

Katz was certainly right, but on the other hand a very popular web site Katz now writes for on occasion, Slashdot, seems intent on proving Cokie and Steve Roberts main contention correct.

This morning, for example, Slashdot posted an item titled Microsoft Fakes Citizen Letters of Support. As is typical with Slashdot, they post an excerpt from a user who first submitted the story to the site.

According to this Seattle Times article, Microsoft is sending letters to Utah’s Attorney General in support of the company, but with fake signatures of citizens (some of whom are dead!). The article says: “Letters sent in the last month are on personalized stationery using different wording, color and typefaces, details that distinguish Microsoft’s efforts from lobbying tactics that go on in politics every day. State law-enforcement officials became suspicious after noticing that the same sentences appear in the letters and that some return addresses appeared invalid.””

This is where I start to get really angry. If you actually go read the Seattle Times story, Lobbyists Tied to Microsoft Wrote Citizens’ Letters, it bears little resemblance to this summary.

Is Microsoft making up letters, signing dead people’s names to them, and then sending those letters to Utah’s Attorney General? Of course not.

What actually happened here was a number of pro-Microsoft lobbying groups conducted telephone surveys about the MS antitrust case. People who indicated they opposed the antitrust case were sent a package including an already prepared letter opposing the antitrust case that they could sign and mail to their state’s attorney general.

So where do the dead people come in? According to the Seattle Times,

Utah officials found that two prefab letters from Citizens Against Government Waste bore the typed names of dead people. Those names had been crossed out by family members who signed for them. And another letter came from “Tucson, Utah,” a city that doesn’t exist.

It is reprehensible for Slashdot to claim that, “Microsoft is sending letters to Utah’s Attorney General in support of the company, but with fake signatures of citizens (some of whom are dead!).”

This from the same site where editors and readers go ballistic because the film Swordfish‘s portrayal of hacking, and specifically computer encryption, was beyond laughable. But at least everyone seeing it new that Swordfish was a piece of fiction, while Slashdot continues to engage in such shoddy practices and pass them off as fact. And, of course, almost never makes any sort of corrections or retraction notices.

And personally I just don’t get it. Here’s my favorite story about Cokie Roberts: she’s a liar as well. Roberts was almost fired by ABC for an incident involving faked “live” coverage outside the White House. Basically, ABC ran footage showing Roberts reporting live from the White House, but in fact the footage was actually shot on a sound stage in front of a blue screen with the White House added in later.

That was extremely shoddy journalism, and at the moment Slashdot is not a whole lot better.

I guess I really don’t understand why anyone would want to put out such a shoddy product. I mean, I understand why traditional news agencies often get burned — incredible deadline and economic pressures — but I don’t see how independent web sites are doing anybody a favor by repeating the same mistakes of traditional media.

The MS Settlements Begin

Despite some of the spin from some quarters that Microsoft’s appeals court victory was really a loss, New Mexico saw the writing on the wall and withdrew from the states’ antitrust lawsuit against the software company.

Microsoft’s minor concessions the other day apparently prompted the attorney general there to rethink the wisdom of sending more money pursuing the company. The concessions were roundly denounced by many as “cosmetic,” but that was a brilliant move by Microsoft. The critics of the changes seem to forget that it wasn’t too long ago that Microsoft’s rigid control over the appearance of the Windows Desktop was at the core of the main charge against Microsoft. Here’s a quote from the Department of Justice’s filing with the Appeals Court:

Microsoft’s restrictions on OEMs went further. Microsoft feared that OEMs might promote the use of Navigator rather than IE by configuring the icons on the initial Windows desktop screen or the “Start” menu entries, or arranging the Windows boot (start-up) sequence. FF 202-03 (JA 2296-97).(26) Microsoft thus “threatened to terminate the Windows license of any OEM” that made such changes or added “programs that promoted third-party software to the Windows ‘boot’ sequence.

…The court found that these licensing and coercive measures, which “guaranteed the presence of Internet Explorer on every new Windows PC system,” had no technical justification. FF 158, 175-76 (JA 2287, 2291).(28) The forbidden OEM conduct, although facilitating the distribution of Navigator, “would not compromise the quality or consistency of Windows any more than the modifications that Microsoft currently permits.” FF 221-23 (JA 2302-03).

So before any new judge can conduct new hearings on possible remedies against Microsoft, the company steps forward and say, “fine, you were right, we were wrong, we’ll act on our own initiative before a penalty hearing to comply with this part of the ruling against us.”

Microsoft’s critics might get some visceral joy out of doing so, but the argument that Microsoft is being deceptive by eliminating a practice that the Court found to be illegal isn’t likely to be a winning legal theory.