Linux-Advocacy Digest #808, Volume #28            Fri, 1 Sep 00 17:13:06 EDT

Contents:
  Re: Richard Stallman's Politics (was: Linux is awesome!
  Re: Richard Stallman's Politics (was: Linux is awesome! (Roberto Alsina)
  Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?]
  Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?] (T. Max Devlin)
  Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?] (T. Max Devlin)
  Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?] (T. Max Devlin)
  Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?] (T. Max Devlin)
  Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?] (T. Max Devlin)
  Re: Anonymous Wintrolls and Authentic Linvocates - Re: R.E.          Ballard       
says    Linux growth stagnating (T. Max Devlin)

----------------------------------------------------------------------------

From: [EMAIL PROTECTED] ()
Crossposted-To: gnu.misc.discuss
Subject: Re: Richard Stallman's Politics (was: Linux is awesome!
Date: Fri, 01 Sep 2000 20:16:57 GMT

On Thu, 31 Aug 2000 15:52:52 -0400, Gary Hallock <[EMAIL PROTECTED]> wrote:
>"T. Max Devlin" wrote:
>
>>
>>
>> I attempted to elicit information, you were reticent.  Your problem, not
>> mine.
>>
>
>Nope.  Roberto answered your questions.  But they weren't the answers you
>wanted to hear, so you chose to ignore them.

        That doesn't sound too surprising. Roberto probably spun them
        to suit his position as a KDE programmer.

        This would be distinct from the spin spun by someone who is primarily
        interested in being subjected to no more Apples, Ataris, or Microsofts.

-- 
        Finding an alternative should not be like seeking out the holy grail.

        That is the whole damn point of capitalism.   
                                                                |||
                                                               / | \

        

------------------------------

From: Roberto Alsina <[EMAIL PROTECTED]>
Crossposted-To: gnu.misc.discuss
Subject: Re: Richard Stallman's Politics (was: Linux is awesome!
Date: Fri, 01 Sep 2000 17:32:11 -0300

[EMAIL PROTECTED] escribió:
> 
> On Thu, 31 Aug 2000 15:52:52 -0400, Gary Hallock <[EMAIL PROTECTED]> wrote:
> >"T. Max Devlin" wrote:
> >
> >>
> >>
> >> I attempted to elicit information, you were reticent.  Your problem, not
> >> mine.
> >>
> >
> >Nope.  Roberto answered your questions.  But they weren't the answers you
> >wanted to hear, so you chose to ignore them.
> 
>         That doesn't sound too surprising. Roberto probably spun them
>         to suit his position as a KDE programmer.

I reply with either my opinion, or with a reference to some document.
If it's my opinion, obviously it reflects my biases. If I provide a
reference, it may or may not. OTOH, you go around saying
"TT threatened to sue harmony" and don't even bother providing
a reference. That's lame.

You are just slinging mud, reflecting your own anti-KDE bias.

>         This would be distinct from the spin spun by someone who is primarily
>         interested in being subjected to no more Apples, Ataris, or Microsofts.

I have not used an Apple, Atari or Microsoft product in about 5 years.
How about you?

-- 
Roberto Alsina (KDE developer, MFCH)

------------------------------

From: [EMAIL PROTECTED] ()
Crossposted-To: 
comp.os.ms-windows.nt.advocacy,comp.os.os2.advocacy,comp.sys.mac.advocacy
Subject: Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?]
Date: Fri, 01 Sep 2000 20:22:46 GMT

On Thu, 31 Aug 2000 19:54:04 GMT, Joe R. <[EMAIL PROTECTED]> wrote:
>In article <[EMAIL PROTECTED]>, 
>[EMAIL PROTECTED] () wrote:
>
>> On Thu, 31 Aug 2000 18:37:55 GMT, Joe R. <[EMAIL PROTECTED]> wrote:
>> >In article <[EMAIL PROTECTED]>, 
>> >[EMAIL PROTECTED] () wrote:
>> >
>> >> On Thu, 31 Aug 2000 12:57:47 GMT, Joe R. <[EMAIL PROTECTED]> 
>> >> wrote:
>> >> >In article <[EMAIL PROTECTED]>, [EMAIL PROTECTED] 
>> >> >wrote:
>> >> >
>> >> >> Said Aaron R. Kulkis in comp.os.linux.advocacy; 
>> >> >>    [...]
>> >> >> >A monopoly which doesn't abuse it's position in the marketplace is
>> >> >> >legal.
>> >> >> >A monopoly which obstructs trade IS illegal.
>> >> >> 
>> >> >> The definition of monopoly is one who obstructs trade, Aaron.  What
>> >> >> you're thinking of is "large market share".
>> >> >
>> >> >Yet another of Max's convenient definitions which suit his inane 
>> >> >arguments but which don't coincide with any other definition used 
>> >> >anywhere else in the world.
>> >> 
>> >>   Nope.
>> >> 
>> >>   He could have gotten that straight out of Black's Law dictionary
>> >>   with legal citations and everything...
>> >
>> >He could have, but he didn't.
>> 
>>      That's rather arrogant of you considering that I have infact posted 
>>      that defintion straight out of Black's Law in this very forum.
>
>Fine. Provide the exact quote.
>
>I guarantee that "monopoly is one who obstructs trade" is not the 
>definition.

        Black's Law Dictionary, Sixth Edition, Page 1007

        ...A monopoly condemned by the Sherman Anti-Trust Act is the 
        power to fix prices or exclude competition, coupled with 
        polices designed to use or preserve that power...

        IOW: obstruction of trade.

>
>Otherwise, a person who cuts in front of you in the grocery store is a 
>monopoly.
        
        A better way of putting would be "obstructing trade like a government".

        Although, I don't think anyone seriously interprets the term 
        "obstruction of trade" like you do.

-- 
        Finding an alternative should not be like seeking out the holy grail.

        That is the whole damn point of capitalism.   
                                                                |||
                                                               / | \

        

------------------------------

From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: 
comp.os.ms-windows.nt.advocacy,comp.os.os2.advocacy,comp.sys.mac.advocacy
Subject: Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?]
Date: Fri, 01 Sep 2000 16:27:15 -0400
Reply-To: [EMAIL PROTECTED]

Said 2 + 2 in comp.os.linux.advocacy; 
>T. Max Devlin wrote in message ...
>>Said Steve Mading in comp.os.linux.advocacy;
>>>In comp.os.linux.advocacy T. Max Devlin <[EMAIL PROTECTED]> wrote:
>
><snip>
>
>>"The offense of monopoly under 2 of the Sherman Act has two elements:
>>(1) the possession of monopoly power in the relevant market and (2) the
>>willful acquisition [384 U.S. 563, 571]   or maintenance of that power
>>as distinguished from growth or development as a consequence of a
>>superior product, business acumen, or historic accident. "
>>
>>Note that there isn't anything about using monopoly power.
>
>First, there are two elements of proof here. Both must be proven.
>
>Element 1: possession of a monopoly. This is showing that the accused
>actually has (1) a monopoly as further defined by the case law interpreting
>this stature and (2) it has to be a monopoly in the relevant market.
>
>Element 2: willful acquisition or maintenance of that [monopoly] power. The
>second part refers to its "maintenance." This is using monopoly power
>improperly. An accused cannot keep its monopoly by using that monopoly to
>prevent competition.

An accused cannot keep it monopoly in any other way, either, since
acquisition of monopoly power is a crime, as are attempts to acquire
monopoly power.

>Microsoft is accused of having a monopoly and improperly maintaining it by
>preventing other middleware from "exposing APIs" to compete with it.

Microsoft was accused (they're now convicted, pending appeal) of four
things:

1. Monopolization of PC OSes
2. Attempted monopolization of Web Browsers
3. Restraint of trade for Web Browsers by tying
4. Restraint of trade for Web Browsers by exclusive dealings

They were convicted on the first three.

>>Only
>>'possession' of monopoly power, willfully (which includes 'maintenance',
>>which obviously would include many 'uses' of monopoly power), is
>>necessary to be convicted.
>
>You have combined the two elements. "Willfully" does not modify
>"possession," element one. You have misalligned the text.

Willfully modifies 'acquire and maintain', and I don't see why you'd
feel the need to distinguish that from 'possession', except for
pedantry's sake.

>>If you can prove it was not monopoly power,
>>but superior product, business acumen, or historical accident, then
>>fine.
>
>These items modify "acquistion or maintenance,"  not possession.
>
>Even if you prove these three items alone were present or not present, which
>could apply to non-monopoly situations, it would be irrelevant if the
>accused did not possess a monopoly.

So how precisely do you propose to prosecute attempts to monopolize, if
possessing a monopoly is first necessary for an accusation to be
relevant?

You misunderstand the process and use of the elements discussed.  If a
company can be shown to possess monopoly power (the ability, regardless
of intent or use, to control prices or exclude competition), the *burden
is then on the defendant* if they wish to try to prove that such seeming
power was acquired or maintained by normal business means.

"If the evidence reveals a significant exclusionary impact in the
relevant market, the defendant's conduct will be labeled
"anticompetitive" - and liability will attach - unless the defendant
comes forward with specific, procompetitive business motivations that
explain the full extent of its exclusionary conduct. See Eastman Kodak,
504 U.S. at 483 (declining to grant defendant's motion for summary
judgment because factual questions remained as to whether defendant's
asserted justifications were sufficient to explain the exclusionary
conduct or were instead merely pretextual); see also Aspen Skiing Co. v.
Aspen Highlands Skiing Corp., 472 U.S. 585, 605 n.32 (1985) (holding
that the second element of a monopoly maintenance claim is satisfied by
proof of "'behavior that not only (1) tends to impair the opportunities
of rivals, but also (2) either does not further competition on the
merits or does so in an unnecessarily restrictive way'") (quoting III
Phillip E. Areeda & Donald F. Turner, Antitrust Law ¶ 626b, at 78
(1978))."

" See United States v. AT&T Co., 524 F. Supp. 1336, 1347-48 (D.D.C.
1981) ("a persuasive showing . . . that defendants have monopoly power .
. . through various barriers to entry, . . . in combination with the
evidence of market shares, suffice[s] at least to meet the government's
initial burden, and the burden is then appropriately placed upon
defendants to rebut the existence and significance of barriers to
entry"), quoted with approval inSouthern Pac. Communications Co. v. AT&T
Co., 740 F.2d 980, 1001-02 (D.C. Cir. 1984). "

>>But the court is not required to be stupid and naive, and they
>>really don't care whether *you* think your product is superior, your
>>acumen sound, or your accident historical.  They look at the market, the
>>competitors, and the customers and ask *them*.
>
>Proof can come from any source. It's credibility and weight, etc. have to be
>assessed.

That's what I said.

"At trial, Microsoft attempted to rebut the presumption of monopoly
power with evidence of both putative constraints on its ability to
exercise such power and behavior of its own that is supposedly
inconsistent with the possession of monopoly power. None of the
purported constraints, however, actually deprive Microsoft of "the
ability (1) to price substantially above the competitive level and (2)
to persist in doing so for a significant period without erosion by new
entry or expansion." IIA Phillip E. Areeda, Herbert Hovenkamp & John L.
Solow, Antitrust Law ¶ 501, at 86 (1995) (emphasis in original); see
Findings ¶¶ 57-60. Furthermore, neither Microsoft's efforts at technical
innovation nor its pricing behavior is inconsistent with the possession
of monopoly power. Id. ¶¶ 61-66. "

>>And if, as distinguished
>>from these 'happenstance' conditions which you say gave you good
>>fortune, there is any reasonable indication that you tried to willfully
>>acquire or maintain monopoly power, that is enough to secure a
>>conviction.
>
>Not so. Without possessing a monopoly, the rest is irrelevant. "Trying" is
>not enough. However, if a monolopy is possessed by the accused, then element
>two would come into play.

You seem to once again clearly ignore the fact that attempting to
monopolize is also and equally illegal.

>"Reasonable indications" is no doubt your own rule of law as to the standard
>of proof. Most civil cases require proof by the weight of the evidence,
>meaning over 50%.

You've barely comprehended a word I've wrote on the subject, I think.
'Reasonable indications' is my own wording for the concept of
"indications providing, beyond a reasonable doubt, that it is so".
While civil cases only require a "preponderance of evidence" (evidence
not being quantitative, statistical analysis is rather senseless), the
intent of the statute appears to be criminal prosecution.

Thanks for your time.  Hope it helps.

-- 
T. Max Devlin
  -- Such is my recollection of my reconstruction
   of events at the time, as I recall.  Consider it.
       Research assistance gladly accepted.  --


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------------------------------

From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: 
comp.os.ms-windows.nt.advocacy,comp.os.os2.advocacy,comp.sys.mac.advocacy
Subject: Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?]
Date: Fri, 01 Sep 2000 16:27:18 -0400
Reply-To: [EMAIL PROTECTED]

Said 2 + 2 in comp.os.linux.advocacy; 

>This isn't exhausting support, it clearly shows you are wrong. It is "the
>maintenance of monopoly power by anticompetitive means" that is illegal,
>not having a monopoly. The whole economy is full of "market leaders."

The maintenance of monopoly power *is* 'having a monopoly'.  And keeping
it, if the maintenance is successful (and unprosecuted).  The whole
economy is full of monopolists, this is the point.  Not that all market
leaders are monopolists.  It is possible to, temporarily at least,
acquire large market share.  "Monopoly" does not mean "large market
share", that is my point.  

   [...]
>>Notice that nothing but a 'dangerous probability' of anticompetitive
>>conduct leading to monopolization is necessary, because, of course,
>>monopolization itself is illegal, not not attempting to monopolize is
>>not illegal.
>
>Wrong. In the law, when three elements of proof are necessary to convict,
>the proof of one alone is not sufficient.

Which 'three elements of proof' are you referring to now?  I thought
there were 2.  Are you referring to "capability, intent, and dangerous
possibility of success" question, used to prosecute attempted
monopolization?

See, this is why I think there's a problem. People see these "elements"
and "arguments" and "tests", and equate them with "proof" and
"evidence".  They are presented these as isolated question, and assume
that they are identical in character with "per se rules".  All of these
precedents support the same 'Rule of Reason', however.  They are not
alternate ways of testing for monopoly; they are alternate ways of
describing it, and "proof" which satisfies one satisfies all, to some
extent.

All the "2 elements" from Grinners are saying is that if you're
conducting business, you're not monopolizing, and if your monopolizing,
your not conducting business.  Other than that, having the power of
monopolization alone is sufficient for conviction under the Sherman Act,
regardless of whether you use that monopoly power.

   [...]
>>The court considers such a market share to be prima facia evidence of
>>monopolization, as a matter of fact.  If its long enough for anyone to
>>care, its monopolization.  The free market prevents monopolies which
>>don't engage in predatory marketing or discriminatory pricing, etc.  The
>>law prevents the rest.
>
>First, an inference is not prima facia evidence. Prima facia evidence simply
>means that the evidence appears so "on its face," but not necessarily in
>substance. Often this kind of showing is used for some procedural and
>evidentiary purpose, such as shifting the burden of proof, etc.
>
>The court is using inference to say mean strong evidence.

That's what I said: the court considers such market share to be evidence
on the face of it that monopolization has occurred.  If the defendant
can rebut this evidence, then they may do so, which is why I referred to
it as prima facia evidence, quite correctly, according to your
explanation.

>Second, the characteristic of modern economies is market leaders, who use
>their revenue to go after market share rather than high prices, so they will
>have the wherewithall to keep investing in technology. The software
>industry, in particular, is full of market leaders.

And what court has addressed your 'modern economies' model?  I'd like to
read about it.  It seems to me that you're simply trying to accommodate
the modern world (where anti-trust enforcement is very weak) where
monopolization is considered common and acceptable (going after market
share is, in fact, the very meaning of 'monopolization').  I'm not
willing to trust your amateur consideration predicated purely on the
point of view of the would-be monopolist.  Increasing the number of
people who buy your product does not increase your "market share" unless
you assume a) everyone who is now buying will continue to buy, b) nobody
is not now buying, and c) nobody buys two different products.  All of
these are obviously false.  Going after market share is a crime, trying
to increase your market *size* by providing (hopefully) superior
products with (possibly) business acumen despite (luckily) historical
accidents, is not.  Horribly subtle, isn't it?

>In any event, you are completely wrong on your major point. Having a
>monopoly is not itself illegal.

Can you provide one shred of evidence outside of common dictionary
definition, popular wisdom, and gedanken experiments?  None of the other
ten people who've paraded through here insisting I'm "wrong" have
provided anything at all.

>Instead of asking people to disprove an
>assertion that is foolish, based on your inability to read what is plainly
>before you, YOU should supply some proof of your assertion, although it
>appears that you have, but can't interpret it correctly.

Please, I don't have the strength for another endless meta-discussion
where you try to tell me that, despite the large amount of supporting
material and discussion I post, and the fact that nobody has provided
any contradictory argument to speak of whatsoever, that my assertion is
foolish.  Have you read the *complete* decision in *any* anti-trust
cases?  Do you feel confident in your ability to interpret *every word*
correctly?

>It's such a well known point of law that further efforts to argue it are
>unproductive.

Perhaps you could point me to the law itself, then, instead of relying
on hand-waving and arm-waving, in roughly equal proportions.

>This situation is behind much of the debate on antitrust law. These modern
>market leaders are beneficial to consumers, unlike the original trusts who
>cornered markets by unfair means.

Bullshit.  Competition is the only thing necessary; if you can't take
the heat, get out of the kitchen.  If you think that monopolization
("market leaders") are necessary for people to get quality products at
low prices through the efficiencies forced by competition, then you
*are* merely relying on 'popular wisdom', and well illustrating the need
for more understanding of the fact that the Sherman Act outlawed
monopolization and attempts to monopolize more than 100 years ago!

People just want easy answers, though, and its a lot easier to remember
"its not illegal to monopolize, its just illegal to use a monopoly
to..." because it seems to jibe more closely with the fact that, unless
you do something to show you have monopoly power, there's little chance
you'll be prosecuted for having it to begin with.  That doesn't mean
that if you get away with it, it isn't illegal.  It does, however, give
power to the monopolists.  The courts agree that having a substantial
market share is enough to overcome the presumption of innocence, all by
itself.  I just wish the citizens knew that.

-- 
T. Max Devlin
  -- Such is my recollection of my reconstruction
   of events at the time, as I recall.  Consider it.
       Research assistance gladly accepted.  --


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------------------------------

From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: 
comp.os.ms-windows.nt.advocacy,comp.os.os2.advocacy,comp.sys.mac.advocacy
Subject: Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?]
Date: Fri, 01 Sep 2000 16:27:27 -0400
Reply-To: [EMAIL PROTECTED]

Said Joe R. in comp.os.linux.advocacy; 
>In article <8omrk3$be2$[EMAIL PROTECTED]>, Steve Mading 
><[EMAIL PROTECTED]> wrote:
>
>> In comp.os.linux.advocacy T. Max Devlin <[EMAIL PROTECTED]> wrote:
>> 
>> : Not necessarily.  They have a substantial market share.  If they are not
>> : very careful (and they know this), their large market share alone could
>> : provide them with monopoly power,
>> 
>> Not just *could*, but *DOES*.  One does not need to excercise a power
>> to have a power.  You are essentially saying monopoly power doesn't
>> exist unless it is actively being used right now..
>> 
>
>That's the problem with arguing with Max. He actually DOES believe that.
>
>For him, it's impossible to differentiate between "having a monopoly" 
>and "abusing a monopoly" in spite of very clear court cases provided 
>numerous times which say that you have to do both to be guilty under 
>U.S. law.

I'd really appreciate it if you'd substantiate that claim by referencing
and quoting some real cases.

>For Max, the mere fact of having a monopoly should make you guilty.

For Congress, as well, and the Supreme Court, to boot.  I'm hardly alone
on this.

>So much for encouraging people to create new products or open new 
>markets. In Max's world, they're guilty of monopolization the minute 
>they sell their first widget.

The possibility of profit, not the possibility of monopolizing, is what
drives real business.  If direct profit alone is not sufficient to
encourage new product and new markets (always has been before!), then
perhaps the market has the products it wants, for the time being, and it
would be inefficient to create more.

I'd like to think you had it even more ass-backwards than most people,
Joe.  But the truth is, not very many people understand anti-trust law.
Thank heavens Congress and the courts aren't as confused as 'popular
wisdom'.

-- 
T. Max Devlin
  -- Such is my recollection of my reconstruction
   of events at the time, as I recall.  Consider it.
       Research assistance gladly accepted.  --


====== Posted via Newsfeeds.Com, Uncensored Usenet News ======
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=======  Over 80,000 Newsgroups = 16 Different Servers! ======

------------------------------

From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: 
comp.os.ms-windows.nt.advocacy,comp.os.os2.advocacy,comp.sys.mac.advocacy
Subject: Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?]
Date: Fri, 01 Sep 2000 16:27:29 -0400
Reply-To: [EMAIL PROTECTED]

Said Roberto Alsina in comp.os.linux.advocacy; 
>"Joe R." escribió:
>> 
>> In article <8omrk3$be2$[EMAIL PROTECTED]>, Steve Mading
>> <[EMAIL PROTECTED]> wrote:
>> 
>> > In comp.os.linux.advocacy T. Max Devlin <[EMAIL PROTECTED]> wrote:
>> >
>> > : Not necessarily.  They have a substantial market share.  If they are not
>> > : very careful (and they know this), their large market share alone could
>> > : provide them with monopoly power,
>> >
>> > Not just *could*, but *DOES*.  One does not need to excercise a power
>> > to have a power.  You are essentially saying monopoly power doesn't
>> > exist unless it is actively being used right now..
>> >
>> 
>> That's the problem with arguing with Max. He actually DOES believe that.
>> 
>> For him, it's impossible to differentiate between "having a monopoly"
>> and "abusing a monopoly" in spite of very clear court cases provided
>> numerous times which say that you have to do both to be guilty under
>> U.S. law.
>> 
>> For Max, the mere fact of having a monopoly should make you guilty.
>
>According to one of his latest posts, there is a felony called
>"attempted monopolization" :-)

"Every person who shall monopolize, or attempt to monopolize, or combine
or conspire with any other person or persons, to monopolize any part of
the trade or commerce among the several States, or with foreign nations,
shall be deemed guilty of a felony"

It's called the Sherman Act, Roberto, Chapter 1 of Title 15, Section 2.

-- 
T. Max Devlin
  -- Such is my recollection of my reconstruction
   of events at the time, as I recall.  Consider it.
       Research assistance gladly accepted.  --


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=======  Over 80,000 Newsgroups = 16 Different Servers! ======

------------------------------

From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: 
comp.os.ms-windows.nt.advocacy,comp.os.os2.advocacy,comp.sys.mac.advocacy
Subject: Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?]
Date: Fri, 01 Sep 2000 16:27:33 -0400
Reply-To: [EMAIL PROTECTED]

Said 2 + 2 in comp.os.linux.advocacy; 
   [...]
>>Microsoft willfully acquired and maintained monopoly power, and that is
>>a crime.  'Monopoly power' indicates a company has a substantial enough
>>market to interfere in the forces of the marketplace and deter
>>competition (restrain trade).  They don't even need to *use* monopoly
>>power; if they willfully acquired it, or if they did anything to
>>maintain it if they achieved it through happenstance, then they are
>>guilty.  Microsoft built IE into Win98 specifically in order to prevent
>>Netscape from maintaining an installed base, regardless of what
>>justification they gave it; this is clearly proven by their actions and
>>by their internal communications.  That's enough for them to be
>>convicted right there.
>
>That's the exact issue to be decided in the appeals process.
>
>Whether the integration of the browser is a "feature" allowed by the law
>related to "tech tying."

No, that's what was discussed in "Microsoft II", the Consent Decree
case.  In the current case, "tech tying" never entered into it.  Judge
Jackson, based on the advice of the District Court, did not use the
'tech tying' per se rule, relying instead on the 'rule of reason'.  The
only question before any appellate court is whether or not the rule of
reason conviction stands, without reference to the "effect/benefit"
question previously used in product tying cases.  Recognizing that the
MS II contradiction of his ruling was not acceptable in the unique case
of software, Jackson relied on the precedent of service tying, rather
than product tying, as upheld by the Supreme Court in earlier cases
against Jefferson Parish and Kodak.

-- 
T. Max Devlin
  -- Such is my recollection of my reconstruction
   of events at the time, as I recall.  Consider it.
       Research assistance gladly accepted.  --


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=======  Over 80,000 Newsgroups = 16 Different Servers! ======

------------------------------

From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: comp.os.ms-windows.nt.advocacy
Subject: Re: Anonymous Wintrolls and Authentic Linvocates - Re: R.E.          Ballard  
     says    Linux growth stagnating
Date: Fri, 01 Sep 2000 16:27:37 -0400
Reply-To: [EMAIL PROTECTED]

Said Roberto Alsina in comp.os.linux.advocacy; 
>"T. Max Devlin" escribió:
   [...]
>> There with the ready answer, and no further information, expecting we'd
>> simply bow to your authority, again, eh, Roberto?
>
>No, actually, I posted as many references as I could find before you
>posted this. Check the posts headers for the times.

The question is whether you posted your information before your message,
not before my response.

>> You'll have to explain your remark, and don't spare the references and
>> verbiage, or duck for cover; your choice.  Here's a question for you:
>> 
>> What do you know about it?
>
>Yawn. Old news.

So, I guess that means "nothing, as usual"?

-- 
T. Max Devlin
  -- Such is my recollection of my reconstruction
   of events at the time, as I recall.  Consider it.
       Research assistance gladly accepted.  --


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