California sues Microsoft for antitrust...again

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You argue from several miscomprehensions

As I said, I'm a veteran of these Microsoft antitrust arguments, and well acquainted with the opposition's tactics. You've used two of the most arguable tactics. You've pulled quotes out of context, both mine and the courts', and used an inappropriate <ocument. Considered in context and using the proper documents, the quotes have a different meaning and your interpetation both social and legal is wrong. Think and you will see that I answered your question in full. You said:

"MS was found to be a Monopoly not because of the territorial agreements that it had made."

and

"I mean, apparently we can call everyone a monopolist, and as long as they dominate their market... and we are all in agreement they must be evil"

What you intimate is that all monopolists are evil and are therefore guilty under the law. This is your premise for all the statements you make about lemmings. However, we do not all agree to your false intimation. You overstate and anyone who would agree is not reading the law correctly, nor applying the law correctly, nor interpretting the finding in the Microsoft case correctly. In rebuttal I said:


"...what Microsoft did to be called a monopolist was to achieve a massive marketshare. (on this we agree) However, a massive marketshare is not a crime! What one does to obtain or maintain a massive marketshare can be."

Do you see in there "Microsoft was found guilty of being a monopolist"? No, you do not. Why not? As I explain in the previous sentence:

"Microsoft was found guilty of tying, exclusive contracts, and there were intimations of an attempt to form a territorial allocation agreement."

The crux of these two statements is: One can be adjudged to be a monopolist, a finding which is definitional, but the definition itself holds no reprocussions. Why? A definition and the fitting of a definition is only a Finding of Fact. Many such facts were collected in the Microsoft case. Paragraph 33 was one.

However, a "Finding of Fact" is not a conclusion of law. For conclusions of law, you must go to the "Conclusions of Law" document, which will delineate not the facts of the case, but the law as it was applied in the case. That document is where the crimes accused and guilt found is stated. To check the "Findings of Fact" to say that Microsoft was found to be big and powerful and is guilty or evil of being big and powerful is disingenuous. Bigness and power are only facts, not crimes.

The key word of my second noted statement is "guilty". What did I list as the guilt: tying and exclusive contracts? For the truth of this assertion, you must go to the "Conclusions of Law", which does not have numbered paragraphs. You shall espy, however, the division: "II. SECTION ONE OF THE SHERMAN ACT", which has two sections: one is entitled "Tying" and the other is entitled "Exclusive Dealing Arrangements". These are the only sections, which explain of what specifically Microsoft was found guilty. Other sections of that document explain the logic that enabled the court to reach the decision of guilt, but guilt is described only by the two sections noted.

Now, what else did I say? "intimations of an attempt to form a territorial allocation agreement"? Intimations are not statements of guilt, but are facts and may be used by the court to persuasively argue the credibility of the witnesses as to why they should not be believed. The legal concept is "unclean hands". At no time though did I say Microsoft was found guilty of forming a territorial allocation agreement. I said it was an intimation, which should have sent you scurrying to the finding of fact to research it. You will find the intimation of unclean hands, as I said, in paragraph 83, of the "Findings of Fact"( Note: virtual territory has the same force as physical territory under the law, so long as the agreement would divide the market).

A Finding of Fact document often contains intimations, assertions, and evidences that the court finds to be persuasive in determining guilt or innocence or in fitting definitions, but they are not of themselves statements of guilt. They are only a recitation of relevant facts and the document must contain them. Importantly, the Findings of Fact must also address what facts are relevant to any tests that a case must meet if the law is to be applicable. You confuse one of these test-meeting statements (para 33) for an address of guilt and this misapplication is procedurally wrong and argumentatively disingenuous.

One of the tests for violation of the Sherman Act is the test of "Does the accused have monopoly power?" To overcome that hurdle, so that the crimes described in the Sherman Act will apply, the court must define the market and show that there is overwhelming influence within that market on the part of the accused. In other words, a company must be successful and powerful to be accused under the Sherman Act, else they do not have monopoly power by definition.

Definitional and test aspects are matters of fact. Guilt is a matter of law. The two are rigorously separate. One cannot be found guilty of a fact. Being big and powerful is not a crime nor is it "evil". Get it?


Distant example: It is not a crime to keep a dangerous animal as a pet (in some States it is, ignore them for purposes of argument). It is, however, a crime to keep a dangerous animal as a pet and fail insure the safety of the public from the pet. See the difference? The first are the tests: is it a pet? Is it dangerous?. The second is the criminal conduct: "fail to insure the safety of the public". If you fail to meet the tests: it wasn't your pet or is not normally dangerous, then you cannot be found guilty of the crime, because the law isn't apropos to you!

To apply this analogy back to the Microsoft case: Microsoft can be a monopoly. That is not a crime nor a reason to consider them guilty. However, monopoly status is a test for the crimes which are defined later in the Sherman Act of which the accused can be guilty if they are a monopoly. If the tests are not met; Microsoft cannot be found guilty of any crimes described by the act. However, Microsoft was found as a matter of fact to fit the definition and therefore can be found guilty of the crimes. They are not guilty of the facts, but only of the crimes. They are not eveil because of the facts, they are evil because of the crimes.

It is the commission of the crimes which makes Microsoft evil, or as I prefer to say: predatory. Microsoft is not predatory because they are a monopoly, since a monopoly can exist without behaving predatorily. You listed some good examples: Apple, Commodore, etc - all held monopoly status at one time, but ceded status to competition and, most importantly, did not engage in illegal activities to hold their status. Had Microsoft behaved similarly to Apple and Commodore, then the facts might have remained the same: they would have been adjudged to be a monopolist, but also adjudged not guilty and not predatory because though a monopoly they had committed no crime.

Microsoft is a monopoly. That is a fact. Microsoft acted in certain ways that were proscribed by law. That is a crime. That they committed crimes is why Microsoft is predatory. Not for your imagined reason that they are big and powerful, but because Microsoft did what we, as a society at the macro level, have said they cannot do. Get it? Got it? Good.

Hopefully as you cease to be a lemming yourself, and educate yourself on the true nature of the antitrust laws; you'll discover that your other analogies are false. Unfortunately, ZDnet seems to have a post size limit and in this limitted space I cannot address your further fallacious analogies.

Posted by: John Le'Brecage   Posted on: 08/29/04 You are currently: a Guest | Members login | Terms of Use

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