Free ride? I'll say - Part 2

ksj · May 13, 2002

Really?

http://www.usdoj.gov/atr/cases/f1300/1306.htm

Notice how it says "Civil Comtempt"?

ksj · May 13, 2002

Kevin St John said:
Really?

http://www.usdoj.gov/atr/cases/f1300/1306.htm

Notice how it says "Civil Comtempt"?

ksj · May 13, 2002

This is little more that a contrived attempt to call Microsoft a criminal organization. You should be ashamed of yourself.

Perhaps you would provide a case number for Microsoft's alleged "Tunney Act" violation. You won't because there isn't one.

I'm done with you. I don't debate with people who resort to insults and/or lies.

Have a nice day.

Kevin

David Barkin · May 13, 2002

Kevin

What you are posting is an intersting document. It refers to a preliminary injuction that the government took out against Microsoft. I believe that the government is stating that Microsoft is in violation of that preliminary injunction. I didn't read the entire document, although I will, trust me I will. But this is part of the larger indictment of Microsoft. You can't "civily" indict someone or "civily" indict a corporation. They were indicted - That automatically makes it a criminal affair. Violating an injuction, for example, if a court tells the lawyers for both sides to keep their mouths shut and someone violates this it is referred to as civil contempt. If the injuction is against a man beating his wife it is criminal contempt.

However I wish lawprofick, who backs Microsoft on just about everything, would comment. I'll be happy to let him be the final arbitrator on this question.

Dave

Kevin St John said:
Really?

http://www.usdoj.gov/atr/cases/f1300/1306.htm

Notice how it says "Civil Comtempt"?

David Barkin · May 13, 2002

Hi Kevin

As I said I'm glad you posted that link.

Here is the governments reasoning on why they used civil as opposed to criminal contempt, from page five of your posted link:

Although making available this simple and obvious version of Windows 95 would have complied with both the letter and spirit of the Court's injunction, Microsoft chose a

different course. Specifically forbidding OEMs from removing the Internet icon from its conditioned offering, 3 Microsoft on December 15 announced two alternatives to the current conditioned license, neither of which is commercially feasible. Microsoft's "options" thus (Page 5) leave OEMs with no option at all and have the practical effect of perpetuating the very conditioning the Court enjoined. Microsoft's transparent attempt to rewrite the injunction to permit precisely what it precludes constitutes a flagrant disregard of this Court's lawful authority and warrants holding Microsoft in civil contempt. See Greyhound, 508 F.2d at 532-33 (upholding criminal contempt conviction because the defendant's "strained and twisted interpretation of the order" would "render the provision a nullity" and explaining that such "'tortured constructions'" or "mere 'paper compliance'" coupled with failure to seek clarification from the court is "strong evidence of a willful violation of the decree").

I gather, (think?) that the above means that it is easier and quicker to enforce the civil contempt then it is to bring a criminal contempt order.

Whatever one thinks about Microsoft THEY certainly have complete contempt for the law.

Kevin St John said:
Kevin St John said:

Really?

http://www.usdoj.gov/atr/cases/f1300/1306.htm

Notice how it says "Civil Comtempt"?

Click to expand...

David Barkin · May 13, 2002

Hi Kevin

http://www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/95-5037a.html

The link above MUST be a secret site owned by myself since it talks quite a bit about Microsofts indioctment for violating the Tunney act. As you point out I'm nothing but a liar while you are a paragon of virtue.

However what you should really find disturbing is that the link THAT YOU POSTED basically, in so many words, calls Microsoft a criminal organization.

Did you read your own link? Finally, although from your point of view, I engage in lies (I must be being paid big bucks by the Linux people) I really can't recall insulting you. That you find it necessary to insult me is a telling point.

Dave

Kevin St John said:
This is little more that a contrived attempt to call Microsoft a
criminal organization. You should be ashamed of yourself.

Perhaps you would provide a case number for Microsoft's alleged
"Tunney Act" violation. You won't because there isn't one.

I'm done with you. I don't debate with people who resort to
insults and/or lies.

Have a nice day.

Kevin

Ron Parr · May 13, 2002

Kevin St John said:
This is little more that a contrived attempt to call Microsoft a
criminal organization. You should be ashamed of yourself.

Perhaps you would provide a case number for Microsoft's alleged
"Tunney Act" violation. You won't because there isn't one.

Sigh... Have folks here heard of google? I'm not a lawyer or a serious Microsoft news follower, but there's an awful lot of information out there to help educate the average person. Perhaps if people availed themselves of this, there wouldn't be so many arguments.

Go to:

http://www.google.com/

and type in some keywords.

If you do "Microsoft Tunney Act", the first hit is:

http://www.usdoj.gov/atr/cases/ms-settle.htm

which contains the case number and the text of the complaint. Note that this is a civil case. (I'll say more on this below.)

Now, if you're wondering about this whole Tunney Act thing, you can do a search on "Tunney Act" and the first hit is:

http://www.usdoj.gov/atr/foia/divisionmanual/ch2.htm

where you will learn the following:

The Tunney Act relates how to handle the aftermath of a violation of the well-known Sherman antitrust act (and/or Clayton act)

It's not clear how anybody other than the government could be in violation of this since it mostly stipulates what things can be used as evidence, how the public interest is assessed, and what/how remedies are determined.

For the matter of civil vs. criminal action, note that while violation of the Sherman antitrust act is a felony, the government did not attempt a criminal trial, which would require a higher standard of proof. So, while the court found that Microsoft violated the Sherman Antitrust Act, they were not convicted of a crime - similar to the way OJ Simpson was liable for unlawfully killing Nicole Brown Simpson, but not guilty of murdering her.

Note that there would be little advantage to the DOJ pursuing a criminal case here since civil action would be sufficient to force Microsoft to change their behavior and (as per the Tunney act) the findings of the civil case could be used as prima facie evidence by other parties against Microsoft, potentially exposing Microsoft to much greater damages than the maximum $10M fine for felonious violation of the Sherman Antitrust Act.

So, while the claims made here about the decisions against Microsoft were overstated, the claim that they were determined to be acting in violation of a serious and important law is not. The fact that the DOJ felt they could serve the public interest without pursuing criminal charges should probably make you feel better only if you think OJ is still looking for the real killer.

--
Ron Parr
FAQ: http://www.cs.duke.edu/~parr/photography/faq.html
Gallery: http://www.pbase.com/parr/

David Barkin · May 13, 2002

Hi Ron

I also have done a little research. Before continuing, let me apologize to Kevin. The information I found confirms your post below. i.e. they were accused of violating a criminal statute in Civil Court for the reasons you state. OTOH of course Levin doesn't deserve an apology but what the heck. The link I am posting is the Dept of Justice Index for all the recent documents of THIS case going back to 1997. No doubt we can find such a list for the old case as well.

http://www.usdoj.gov/atr/cases/ms_index.htm

Thanks for the post Ron

Dave

Ron Parr said:
Kevin St John said:

This is little more that a contrived attempt to call Microsoft a
criminal organization. You should be ashamed of yourself.

Perhaps you would provide a case number for Microsoft's alleged
"Tunney Act" violation. You won't because there isn't one.

Click to expand...

Sigh... Have folks here heard of google? I'm not a lawyer or a
serious Microsoft news follower, but there's an awful lot of
information out there to help educate the average person. Perhaps
if people availed themselves of this, there wouldn't be so many
arguments.

Go to:

http://www.google.com/

and type in some keywords.

If you do "Microsoft Tunney Act", the first hit is:

http://www.usdoj.gov/atr/cases/ms-settle.htm

which contains the case number and the text of the complaint. Note
that this is a civil case. (I'll say more on this below.)

Now, if you're wondering about this whole Tunney Act thing, you can
do a search on "Tunney Act" and the first hit is:

http://www.usdoj.gov/atr/foia/divisionmanual/ch2.htm

where you will learn the following:

The Tunney Act relates how to handle the aftermath of a violation

of the well-known Sherman antitrust act (and/or Clayton act)

It's not clear how anybody other than the government could be in

violation of this since it mostly stipulates what things can be
used as evidence, how the public interest is assessed, and what/how
remedies are determined.

For the matter of civil vs. criminal action, note that while
violation of the Sherman antitrust act is a felony, the government
did not attempt a criminal trial, which would require a higher
standard of proof. So, while the court found that Microsoft
violated the Sherman Antitrust Act, they were not convicted of a
crime - similar to the way OJ Simpson was liable for unlawfully
killing Nicole Brown Simpson, but not guilty of murdering her.

Note that there would be little advantage to the DOJ pursuing a
criminal case here since civil action would be sufficient to force
Microsoft to change their behavior and (as per the Tunney act) the
findings of the civil case could be used as prima facie evidence by
other parties against Microsoft, potentially exposing Microsoft to
much greater damages than the maximum $10M fine for felonious
violation of the Sherman Antitrust Act.

So, while the claims made here about the decisions against
Microsoft were overstated, the claim that they were determined to
be acting in violation of a serious and important law is not. The
fact that the DOJ felt they could serve the public interest without
pursuing criminal charges should probably make you feel better only
if you think OJ is still looking for the real killer.

--
Ron Parr
FAQ: http://www.cs.duke.edu/~parr/photography/faq.html
Gallery: http://www.pbase.com/parr/

Ron Parr · May 13, 2002

ksj said:
In other words, the fact that a trial court ruled against a
defendant does not mean that they are necessarily guilty. Anyway,
when a settlement is reached, where no party agrees to fault, thats
the end of it. Neither you nor I know for sure whether MS would
have prevailed under appeal.

Sure. We never know about the outcomes of hypothetical appeals. Indeed, even when one company fully accepts the judgement of the court without appeal, we don't know why they accepted it and how the appeal would have turned out.

What your reasoning says is that with the possible exception of decisions made by the supreme court, for which no appeal is possible, we never really know who was right or wrong.

To a certain extent your right, but if we're willing to attach any meaning to the outcome of any legal proceeding, then the outcome should be taken as being somewhat indicative of the facts. Keep in mind that the courts always encourage parties to settle out of court and the non-admission of guilt is standard in such settlements since the parties are much more interested in money than name-calling in the end. Thus, the existing court decision and the subsequent out of court settlement and payment to Stac ought (IMO) to be taken as very suggestive - to the extent that we are willing to accept that any outcome of a dispute is suggestive.

Now, I think it's fair to enter into discussion about the motivations of the parties, to speculate on how further legal wranglings would have proceeded, and even discuss the validity of the final court actions. If you want to drag out the algorithms, patents and legal arguments, perhaps we could do that. In absence of this, you have a much larger rhetorical burden to convince people that the behavior of the courts and the involved parties is contrary to the facts.

ksj said:
Personally I think there would be a large body of evidence that
there were prior works that would have invalidated Stac's patent.

I did some more searches and, interestingly, it appears that Microsoft did not challenge the validity of Stac's patent, but argued that they were not in violation. So, while you could be right (I haven't studied the algorithms) it would be interesting if even Microsoft did not want to challenge the patent.

Note that it would be somewhat hypocritical for Microsoft to challenge the validity of Stac's patent since they have been quite active in seeking their own patents for algorithms for which there is well-known prior work. Thus, even if your supposition of prior work is correct, Microsoft would be disinclined to trot out such arguments for fear they would be later used against them.

(This is not hyperbole. In one particularly egregious example close to my research area, they filed for a patent in 1996 for techniques that were well-known in the field for years before this. If you want to debate this, check out patent no. 6,076,083 and then download a paper from Microsoft research which contains references to prior art in this area going back many years, e.g. the Spieglehalter and Lauritzen reference from 1990. Here's the MS research paper:

ftp://ftp.research.microsoft.com/pub/tr/tr-95-06.pdf

I should point out, BTW, that the people at Microsoft research are fine and honest scholars who have no control over the actions of Microsoft's legal team.)

ksj said:
In any case, I hope we can agree to disagree and move on...

I guess I'd like to. I mulled over your response for a while and couldn't figure out how somebody who agreed with your view of things would ever attach meaning to any legal decision and this got me thinking that perhaps this was not an entirely defensible position.

I can accept that you have suspicions about the strength of Stac's case and that there may be validity to these suspicions. However, I would hope that you would also accept that by virtue of the legal and out-of-court actions that have been taken, your rhetorical burden is higher, requiring a fairly strong and detailed argument.

--
Ron Parr
FAQ: http://www.cs.duke.edu/~parr/photography/faq.html
Gallery: http://www.pbase.com/parr/

Gene Miller77510 · May 13, 2002

One thing that I noticed is a paragraph from one of these links which I think puts things more in perspective, at least to my view. I am happy there are people who try to bring out when corportations over step the line. But from reading these threads I have to agree more with the pro MS debate. BTW, it is impossible to debate opinions, one only argues opinions, but you can debate the sources that have determined one's opinion. Microsoft has been the master of writing contracts and when other companies discovered how they were excluded the other companies decided to file unfair business practices which did force MS to change some of their contracts. But that's not criminal, that was good business, not fair business. We do have courts that try to level the playing field and you have large corporations like MS who will always try to level the playing field in their favor. I don't look at any of these companies as being perfect or that they are here for our protection. They all just want our money and I give it when I feel I am getting a fair return.

"The government did not allege and does not contend-and this is of crucial significance to this case-that Microsoft obtained its alleged monopoly position in violation of the antitrust laws. The government believes that Microsoft's initial acquisition of monopoly power in the operating systems market was the somewhat fortuitous result of IBM choosing for its PCs the operating system introduced by Microsoft ("MS-DOS"), which, with Microsoft's successful exploitation of that advantage, led Microsoft to obtain an installed base on millions of IBM, and IBM-compatible, PCs."

David Barkin said:
http://www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/95-5037a.html

The link above MUST be a secret site owned by myself since it talks
quite a bit about Microsofts indioctment for violating the Tunney
act. As you point out I'm nothing but a liar while you are a
paragon of virtue.

However what you should really find disturbing is that the link
THAT YOU POSTED basically, in so many words, calls Microsoft a
criminal organization.

Did you read your own link? Finally, although from your point of
view, I engage in lies (I must be being paid big bucks by the Linux
people) I really can't recall insulting you. That you find it
necessary to insult me is a telling point.

Dave

Kevin St John said:

This is little more that a contrived attempt to call Microsoft a
criminal organization. You should be ashamed of yourself.

Perhaps you would provide a case number for Microsoft's alleged
"Tunney Act" violation. You won't because there isn't one.

I'm done with you. I don't debate with people who resort to
insults and/or lies.

Have a nice day.

Kevin

Click to expand...

--
C700uz, E100rs
http://www.pbase.com/gene
Life is just a stage and we all have enough pictures to proof it!

Ron Parr · May 13, 2002

Gene Miller said:
"The government did not allege and does not contend-and this is of
crucial significance to this case-that Microsoft obtained its
alleged monopoly position in violation of the antitrust laws. The
government believes that Microsoft's initial acquisition of
monopoly power in the operating systems market was the somewhat
fortuitous result of IBM choosing for its PCs the operating system
introduced by Microsoft ("MS-DOS"), which, with Microsoft's
successful exploitation of that advantage, led Microsoft to obtain
an installed base on millions of IBM, and IBM-compatible, PCs."

This statement says that the government believes that Microsoft obtained what is called a "natural" monopoly, but it has no bearing on the illegal actions which were the subject of the trial.

--
Ron Parr
FAQ: http://www.cs.duke.edu/~parr/photography/faq.html
Gallery: http://www.pbase.com/parr/

Garrett Hart · May 13, 2002

ksj said:
4) Stealing code? Got some proof of that?

http://www.pcworldmalta.com/specials/MSPiracy/

ksj · May 13, 2002

Ron,

I think you've mistated my position. If an Appeals court (that includes the Supreme Court) refuses an appeal, then the issue on appeal is resolved. End of story.

If however the two litigants settle before an appeal is heard, we just do not know who would have prevailed.

Note - MS can still appeal other issues to the Supreme Court - they have only appealed a narrow issue in the COA ruling (Judge Jackson's alleged bias). In fact they could appeal the remedy once the current phase of the case is complete, though that would go to the COA.

Kevin

ksj · May 13, 2002

You have repeatedly claimed that MS was indicted in a criminal complaint. When told it was not you insisted it was. When presented with proof via the actual filing by the DOJ you don't bother to admit you're wrong.

I'm certainly no paragon of virtue, but I don't continue to claim something is true when it clearly is not.

You claim I didn't read it, and that is says MS is a criminal organization "in so many words" yet there is not one - not one - criminal indictment against MS. If you can find one then provide the post to the Gov't agancy that filed the claim. Perhaps you can tell the rest of us where it says this "in so many words".

And to quote the third paragraph of your post:

"In July 1994, the Department filed a civil complaint under the Sherman Act, 15 U.S.C. §§ 1 and 2 (1988), charging Microsoft with unlawfully maintaining a monopoly of operating systems for IBM-compatible PCs and unreasonably restraining trade of the same through certain anticompetitive marketing practices."

I'm pretty sure that says civil complaint. In fact a search of the document does not turn up the word "criminal", or "crime" for that matter.

So I guess the question is: Do you read your links before you falsely accuse others?

Gene Miller77510 · May 13, 2002

In France MS bought a company who commited software piracy. It was MS who got cheated. All of you people who are anti MS are just redicules. I have tried to stay on the side line and read all these posts and links and I see no end to your hate of MS. No matter what anybody post you hate mongers just ignore and keep stating lies. I tried to be open minded, but I can no longer. You people hate MS so much you cannot see the truth if it bit you on the butt. You people have given me a new respect for MS. BTW, Mac didn't start GUI, they bought it from Xerox. It was also Microsoft who helped develop the MacIntosh. Below is a quote from the link you posted.

"The company was sued in the place of Softimage France, a former wholly owned subsidiary of Microsoft France which it decided to close in June 1997, assuming all rights and responsibilities associated with the dissolved company. By then, Softimage France had already been pursued for two years for software piracy and unfair competition. The plaintiffs were the two French authors of a piece of 3D CGI animation software swallowed up by Softimage in the early 1990s -- and then digested by Microsoft."

Garrett Hart said:
Garrett Hart said:

4) Stealing code? Got some proof of that?

Click to expand...

http://www.pcworldmalta.com/specials/MSPiracy/

--
C700uz, E100rs
http://www.pbase.com/gene
Life is just a stage and we all have enough pictures to proof it!

DCsince89 · May 13, 2002

Gene Miller said:
BTW, Mac didn't start GUI,
they bought it from Xerox. It was also Microsoft who helped develop
the MacIntosh.

Oh Gene,

Again and again your posts prove that retirement fosters senility. ; )

Apple did not purchase the GUI from Xerox. Jeff Raskin, one of the first Apple employees, started development on an OS GUI long before Apple itself even started investigation to develop a computer with a GUI. While the Urban Legends and Folk Lore talk of Steve Jobs 'discovering' the GUI while @ Xerox PARC, it was actually under development for almost two years prior to his visit.

Microsoft did not help develop the Macintosh. MS developed a number of software applications for the Macintosh platform (including Excel and Word long before they ever became available for Windows) that greatly helped the platform but they had nothing to do with the actual development of the computer.

JoePhoto · May 14, 2002

Gene Miller said:
In France MS bought a company who commited software piracy. It was
MS who got cheated. All of you people who are anti MS are just
redicules. I have tried to stay on the side line and read all these
posts and links and I see no end to your hate of MS. No matter what
anybody post you hate mongers just ignore and keep stating lies. I
tried to be open minded, but I can no longer. You people hate MS so
much you cannot see the truth if it bit you on the butt. You people
have given me a new respect for MS. BTW, Mac didn't start GUI,
they bought it from Xerox. It was also Microsoft who helped develop
the MacIntosh.

MS helped Apple develop the MAC ??? I just can't wait until you further explain that !!!

Especially since Bill Gates originally rediculed the GUI. (And Apple STOLE the GUI -and mouse- from Zerox ... I don't think any $$$ were exchainged; but I am not sure and could be wrong.)

Below is a quote from the link you posted.

Gene Miller77510 said:
"The company was sued in the place of Softimage France, a former
wholly owned subsidiary of Microsoft France which it decided to
close in June 1997, assuming all rights and responsibilities
associated with the dissolved company. By then, Softimage France
had already been pursued for two years for software piracy and
unfair competition. The plaintiffs were the two French authors of a
piece of 3D CGI animation software swallowed up by Softimage in the
early 1990s -- and then digested by Microsoft."

So on WHAT DATE did MS "buy" this company. You just stated that MS "closed" the company in '97; implying that it was purchased by MS sometime earlier than that. I don't know the "facts" of this situation ... but it seems from just reading your post ... that MS could have owned them AT THE TIME of the piracy.

Gene Miller77510 said:
Garrett Hart said:

Gene Miller77510 said:

4) Stealing code? Got some proof of that?

Click to expand...

http://www.pcworldmalta.com/specials/MSPiracy/

Click to expand...

--
C700uz, E100rs
http://www.pbase.com/gene
Life is just a stage and we all have enough pictures to proof it!

--
Thanks for reading .... JoePhoto

( Do You Ever STOP to THINK --- and FORGET to START Again ??? )

ksj · May 14, 2002

Actually I think they can only bring a civil contempt charge in a civil case. If it were a criminal case it would have been criminal contempt. The reference to criminal contempt is just that, a case reference to support their complaint.

In any case the charge was overturned upon appeal.

Kevin

David Barkin · May 14, 2002

Hi Gene, Ron and Kevin

First, as in my previous post I aplogised to Kevin. If he had read the post BEFORE that he would know that I was starting to have doubts and wondered why lawprofic had dropped out of this thread. He, while on Micorsofts side in this question, struck me as knowlegible. Well thanks to Ron's research and my own checking, I see that Kevin is correct - Microsoft was civily charged with violating the Anti-Trust laws. That little eating of crow over with, I shall continue.

Gene points out that the Government never accused Microsoft of innitially acquiring their monopoly by illeagal means. While in this thread, Microsoft has been rediculed over the methods they used to acquire their monopoly I'm unaware of anyone who said they did it illeagally. I certainly haven't.

All this being said, in the 1994 case Microsoft was CONVICTED of using illeagal means to MAINTAIN their monopoly. That is undeniable. I should point out that if it was anyone else who had done stuff like that we'd be in jail wishing for the dream team legal defense.

ksj said:
You have repeatedly claimed that MS was indicted in a criminal
complaint. When told it was not you insisted it was. When presented
with proof via the actual filing by the DOJ you don't bother to
admit you're wrong.

I'm certainly no paragon of virtue, but I don't continue to claim
something is true when it clearly is not.

Kevin - This is the value of an open debate. I've held these view for 15 years. The point over criminal or civil charge, while important, is not critical to my arguement. It's certainly relevant and I'm glad you caught me. But the docuements that you and I, Ron and others present, paints a very ugly picture of Microsoft.

The question, over and above business ethics in America, is whether Microsoft has aided ot harmed the technological revolution.

There are companies that have reasonably good business ethics. But that also is not the point. The question of whether there should be more regulation of business ala ENRON or Authur Anderson is also a seperate issue.

Quoting court cases to prove my Microsoft position is a way of proving that their actions harmed the computer advance. I must admit that saying "they are convicted criminals" sounds stronger then they were convicted of violating anti-trust laws but I can live with either one. If they had been acquited it would have still have left me feeling that they're a big arguement for socialism but I would have lost much of the wind beneath my wings.

ksj said:
You claim I didn't read it, and that is says MS is a criminal
organization "in so many words" yet there is not one - not one -
criminal indictment against MS. If you can find one then provide
the post to the Gov't agancy that filed the claim. Perhaps you can
tell the rest of us where it says this "in so many words".

And to quote the third paragraph of your post:

"In July 1994, the Department filed a civil complaint under the
Sherman Act, 15 U.S.C. §§ 1 and 2 (1988), charging Microsoft with
unlawfully maintaining a monopoly of operating systems for
IBM-compatible PCs and unreasonably restraining trade of the same
through certain anticompetitive marketing practices."

I'm pretty sure that says civil complaint. In fact a search of the
document does not turn up the word "criminal", or "crime" for that
matter.

So I guess the question is: Do you read your links before you
falsely accuse others?

I think any fair reading of your link or many other links would say that they were charged with violating the law. Ron puts it better then I. To say that this was not a criminal indictment does not weaken that statement. I get your point that calling them "convicted criminals" is wrong. They were however convicted of violating the law. They agreed to cease and desist (1994/95). They have again been charged with the same violations and violating the 1995 settlement.

Dave

David Barkin · May 14, 2002

Hi Ksj

Here's the link to the US Supreme Courts rulling on Microsofts appeal from the appeals court:

http://www.usdoj.gov/atr/cases/f8900/8951c.htm

The Supreme court absolutely denied Microsoft's appeal as to the facts of the case.
You read it and tell me where I'm in error.

Microsoft Corporation seeks review of a unanimous en banc judgment of the court of appeals that largely affirmed a district court judgment holding that Microsoft violated the Sherman Act, 15 U.S.C. 1 et seq., but remanded the case for redetermination of remaining liability issues and the appropriate remedy for Microsoft's violations of the antitrust laws. Among its rulings, the court of

appeals concluded that the district judge's public statements and contacts with the press, in violation of the Code of Conduct for United States Judges, warranted disqualification under 28 U.S.C. 455(a). Microsoft limits its petition for review to whether the en banc court properly determined the appropriate remedy for violation of Section 455(a).

Dave

ksj said:
Ron,

I think you've mistated my position. If an Appeals court (that
includes the Supreme Court) refuses an appeal, then the issue on
appeal is resolved. End of story.

If however the two litigants settle before an appeal is heard, we
just do not know who would have prevailed.

Note - MS can still appeal other issues to the Supreme Court - they
have only appealed a narrow issue in the COA ruling (Judge
Jackson's alleged bias). In fact they could appeal the remedy once
the current phase of the case is complete, though that would go to
the COA.

Kevin

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