Linux-Advocacy Digest #914, Volume #28 Tue, 5 Sep 00 05:13:03 EDT
Contents:
Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?] ("2 + 2")
Re: Inferior Engineering of the Win32 Platform - was Re: Linsux as a desktop
platform (D. Spider)
Re: Why I hate Windows... (D. Spider)
----------------------------------------------------------------------------
From: "2 + 2" <[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: Tue, 5 Sep 2000 04:21:07 -0400
T. Max Devlin wrote in message ...
>Said 2 + 2 in comp.os.linux.advocacy;
>
> [...]
>>As business in the US became concentrated following the industrial
>>revolution, there were many who objected to bigness as such. Certainly the
>>original antitrust law concerned "trusts" that were set up simply to
corner
>>markets.
>
>You're touching upon the "if restraint of trade is already illegal, why
>does the Sherman Act also outlaw monopolizing?" issue. In outlawing
>monopolizing as well as attempt monopolizing, Congress apparently meant
>to indicate that any action which might lead to such 'trusts' are
>illegal, as well as the restraint of trade which such trusts manifest.
>
>>In relation to United States v. U.S. Steel Corporation (1920), Justice
>>Joseph McKenna asserted the “rule of reason” as a nice name for the
>>principle that only business entities that are in unreasonable restraint
of
>>trade are illegal.
>
>That's a good one. You may have noticed that nobody ever *exclusively*
>defines the rule of reason. I think this is one of the fundamental
>differences between legal and common language, and a fundamental flaw in
>common language (when dealing with precise questions). Legal terms,
>like monopoly and tying and the 'rule of reason', are defined
>inclusively; each definition adds to the description. Common terms are
>guided by exclusive definition, as by a dictionary: the thing is this
>and no other.
Granted, common and legal terms are very different. That's why plagiarism
can be difficult to do in the law (in a certain sense) because terms and
phrases get defined, and varying those creates problems since they have to
be interpreted.
Lots of legal writing involves knitting together of these phrase with case
citations.
But that's the key. The phrase get established as a legal principle by being
cited repeatedly, linked to actual cases where the facts may vary.
So then legal analysis involves "distinguishing," ie showing why the facts
in question are different from the facts of a precedent, so that a phase,
actually a rule of law, should not be applied.
It's sorta like methods and data variables in programming when the data
variable rise to the abstracted level of properties or attributes. And how
these can be misused if the proper dependencies, etc., are not observed.
>
>The rule of reason is, if I might be so bold as to extend McKenna, is
>also a nice name for the principle that all business entities which
>inhibit competition are in restraint of trade.
>
>>Where in Jackson's Conclusions of Law do you see him rely on this "rule of
>>reason" principle to settle the tying issue? In legal jargon, it doesn't
>>"cut" that way, ie it's not useful in that regard.
>
>A. Tying
> Liability for tying under § 1 exists where (1) two separate "products"
>are involved; (2) the defendant affords its customers no choice but to
>take the tied product in order to obtain the tying product; (3) the
>arrangement affects a substantial volume of interstate commerce; and (4)
>the defendant has "market power" in the tying product market. Jefferson
>Parish, 466 U.S. at 12-18. The Supreme Court has since reaffirmed this
>test in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S.
>451, 461-62 (1992). All four elements are required, whether the
>arrangement is subjected to a per se or Rule of Reason analysis.
>
>
>>This basic principle, ie that only monopoly action that prevents
competition
>>is illegal, is not disputed by the parties. It is expressed in the
Grinnell
>>passage you have cited.
>
>Yes, and it can also be seen, if you look at it with the right
>perspective, that all actions which prevent competition are illegal
>monopolizing.
Legal reasoning, and lawyers are trained on points like this, is not to let
a conclusion (like "all actions which prevent competition," are illegal)
dominate the analysis.
"Prevent competition" can refer to a myriad of things. The problem with
arguing from conclusions, as much as it is satisfactory to the expression of
one's cause, is that it can miss all the substance of the analysis.
Clearly, competition itself which is desirable has the effect of "preventing
competition."
So then the point has to be modified to distinguish why desirable constructs
don't "prevent competition."
By that time, in an actual case, the opportunity to make arguments that go
to the facts and the law is missed, and all the lawyer has done is spout
conclusions.
>>"Rule of reason" has a nice sound. It is from an era when judges liked to
>>gussy up their decision with great sounding material, especially Cardoza.
>
>It has been a strong backbone to every anti-trust decision from the
>first to the last, it appears.
>>Jackson bases his decision on his finding that the browser is a separate
>>product, not a feature.
>>
>>See IIA Tying at http://www.usdoj.gov/atr/cases/f4400/4469.htm
> [...]
>
>Funny, that's the same link I used to find his reference to the Rule of
>Reason. I wonder how you missed it; you referenced the same section
>that I did.
You're right. I didn't see it there.
Max, the reason I started posting on this is that you were denying the basic
point that the possession of a monopoly in itself is not illegal. Even with
the citations you yourself provided. Which suggested an interpretation
problem.
And I used a "jailhouse lawyer" for the way legal analysis is abused.
>
>>And that's why he wanted the case to go to the Supreme Court. Jackson
knows
>>what a mess he has made of this case.
>
>Ha.
>
>>This is the problem with using principles from cases that are not directly
>>on point.
>
>There are no cases that are directly on point; that's the principle of
>using precedent and the rule of reason.
There you go again.
You seem to be elevating the "rule of reason" to some great status because
it implies that its proponents are using "reason" and the others are just
plain stupid.
>
>>Do these principles extrapolate to tech tying cases? That will be the
>>question if tech tying is found.
>
>It never will be found, or looked for. The per se technical tying test
>is not at issue; Judge Jackson found Microsoft guilty of restraint of
>trade using the rule of reason and the precedent he cited.
Are we talking about the same appeals court?
You know, Jackson didn't react very well to being reversed.
So it is with the appeals court. There is nothing cited by Jackson that they
are not aware of. The same cases are cited in the minority dissent.
This is widely recognized as the major issue in the case. But then there is
Max law. :)
>If there had
>been no precedent, certainly the case would have to go to the Supreme
>Court. But the precedents seem to make clear that a per se test such as
>the Appellate Court examined is not necessary to prove technical tying.
>
>>The browser is actually the web middleware client. An interesting tech
point
>>is the effect Microsoft's .NET platform might have on the question.
>
>What do you think .NET is, if not Microsoft's attempt to maintain a
>'middleware' monopoly even if they should lose the OS and browser ones?
The remedy ordered continues the OS monopoly.
Not only is the browser to be separated from the OS, but all middleware. MTS
transaction processing is specifically mentioned. Of course, it has been
said that the DoJ economic advisors have a conflict of interest, and may be
trying to protect certain server software markets from competition (the same
places where they "fee" out).
So there is a built in incentive for the antitrust lawyers to get in on the
new "gilded age."
>
>>Will the .NET Platform be integrated in the browser or OS?
>
>There won't ever be a .NET platform, to speak of. It only works if you
>have a monopoly.
It works if you have good technology.
>
>>Will there be .NET computers sold? If so, hopefully they will work better
>>than JavaStations. :)
>>
>>If .NET computers are sold, will they run on Linux and Apple as well as
>>Windows?
>
>There will be no .NET computers sold; no hardware manufacturer with half
>a brain is going to build more boxes for Microsoft. If they want boxes,
>they'll have to build them themselves. Them and X-box and web-TV.
>Microsoft is dog-meat.
Well, the basic antitrust premise is that to be a monopoly requires that you
are able to prevent competition in the first place.
The "dog-meat" argument would seem to preclude a monopoly finding. Perhaps
that's the motivation for your intense "cause" and misanalysis of the first
hurdle of possessing a monopoly.
Got skill sets that you are invested in, Max? Is your computer politics and
legal analysis basically a way to protect your income?
If so, this creates a view of Max that is a little different that "crusader
rabbit," idealistically pursuing a cause, eh?
>.Net is a pretend innovation that Microsoft wanted ready on the
>off-chance they'd still have a monopoly in a couple years. Its already
>retarded development in the industry, just by being vapor. MS might
>think they'll be able to use it to monopolize even if they get split up,
>as a 'unifying technology' for Office and Windows. Wouldn't you figure;
>if it works, MS will be up for a Standard Oil-style prosecution before
>the decade is out.
Anything to protect those overpriced server markets and the job skill sets,
eh Max?
Afraid of competition?
>
> [...]
>>>Where are you abstracting this from?
>>
>>I read Lessig's brief.
>
>Got a url?
>
> [...]
>>If the "bundled" features make a separate product with a different
relevant
>>market, then such features would be disallowed.
>
>It doesn't work like that.
>
> [...]
>>>Or maybe its their desire to decrease the amount of competition they
>>>have?
>>
>>Of course, they are trying to do this. That's the whole point. It's good
for
>>the consumer even if their motivation is bad. It's basic Adam Smith and
the
>>invisible hand, ie greed promoting a higher standard of living.
>
>No, it doesn't work like that, either. Adam Smith's producers want to
>increase the amount they sell and the profit they take; there is no
>reason whatsoever for concern over the amount of competition you have.
>That's only a measure of your lack of imagination of more or better ways
>to produce, sell, and take profit. The reason 'monopolizing' was
>outlawed is because your premise is false; that isn't the whole point at
>all. In fact, it isn't even an *allowable* point. It destroys the free
>market, because it requires anti-competitive activity. And Adam Smith's
>producers didn't try to control the 'invisible hand'. They all only
>took pro-competitive actions, by definition.
>
> [...]
>>>That's going to impress any federal judge; its half-way to a
>>>conviction when that happens. You better be pretty damn sure that a
>>>whole lot of people really LOVE the new features, and practically nobody
>>>complains about it.
>>
>>You're confusing modern media and their views as opposing to what makes
the
>>economy successful.
>
>No, you are. Or, you're recognizing, like millions of people do, that
>'marketing' (advertising intended to manipulate the demand for a
>product, which isn't marketing, thus the quotes) is effective. That's
>why they outlawed monopolizing; if people didn't buy in to the lies of
>the largest producer, based on the weight of the fact that they are the
>largest producer, then monopolizing wouldn't be nearly so easy as it is.
>It would still be just as illegal.
>
> [...]
>>Your thinking is the very "cause" oriented material that requires that we
>>have good legal distinctions so the economy can flourish despite such
>>thinking.
>>
>>The cases distinguish between situations that are beneficial and harmful.
>
>There are no such cases. If it does not encourage *competition*, it is
>harmful.
Arguing from conclusions once more. Of course, you are one of the special
enlightened ones, right Max?
>
>A vendor raising their prices encourages competition. It provides room
>at the bottom of the value/price scale.
>
>A vendor that lowers prices encourages competition. It provides
>opportunity for profit at higher price points.
>
>A vendor which does whatever is in his best interest to produce and sell
>more of his products at a lower cost right now is being competitive.
>Vendors which are attempting to gain market share are monopolizing, and
>breaking the law.
Let Max be Max.
>That seems counter-intuitive in a software market, I
>know, but if it weren't true, then there never would have been any
>standard protocols.
In the Unix world, there is a fetish about "standards." That's because the
major Unix vendors created non-tech based proprietary incompatibilities to
get higher profit margins from vertically structured markets around their
OS.
>Microsofties are very good at pointing out that it
>makes absolutely no sense for a vendor to *not* try to proprietize
>everything as much as possible. Unless you realize that's illegal, of
>course.
>
> [...]
>>The Federal Circuit indeed said it WAS a case of technical tying, even
>>though they added that the case had not been heard in full (and thereby
>>rendering their opinion as dicta). Even Jackson recognized this, see the
>>opinion I inserted above.
>
>They said that it was NOT a case of 'technical tying', in terms of the
>per se rule used to test technical tying. It is still tying, even
>though it doesn't use the per se test ("was it to exclude competition or
>to benefit the consumer?") because the test simply can't work for
>software products, and that's what the Appellate Court said. Jackson
>responded by relying on service-related anti-trust precedent, which seem
>quite appropriate.
>
> [...]
>>Per se is not a test. Per se simply means "by itself." The "rule of
reason"
>>was not specifically involved; the "services" cases cited were.
>
>I find it only slightly surprising you missed the reference to the Rule
>of Reason; Jackson even put it in caps. Its easy to miss that kind of
>thing, especially buried (as it was) between two references, which the
>eye of the casual reader would normally skip over.
>
>>You keep using the "rule of reason" when it's point opposes your view that
>>mere possession of a monopoly is illegal.
>
>The rule of reason is the point of view that mere possession of a
>monopoly is illegal. The 'reason' cited is the same point that has been
>repeated in all major discussion (often, apparently, unobserved) of
>anti-trust; anti-competitive activity is the only way to possess
>monopoly, [. . . ]
This is wrong both factually and legally. It is strictly Max based economics
and law.
>and anti-competitive activity is therefore illegal, since
>monopolization is illegal. This generally inexplicit rule of reason is
>based on the fact that, while restraint of trade, the harm of monopoly,
>and both monopolization and attempted monopolization are all outlawed,
>possession of a monopoly itself is not made illegal. The question,
>asked early and often by judges, is "why?" The answer, referenced in
>various ways by speaking of the 'rule of reason', is that Congress knew
>as anyone familiar with market theory knows, that monopoly is prevented
>by a free market, not the law.
>
> [...]
>>>Yea, so I'm not a federal justice. What's your point? Are you saying
>>>you know what the judges will say better than I?
>>
>>Without a doubt.
>
>I think you're mistaken, but obviously that's my opinion. You tried to
>say that since I'm not a federal judge, I can't say. Are you a federal
>judge?
I'm not saying I'm so smart. I'm saying that you are slinging it.
Since you say you have done the research, why not try this: construct an
Elements of Proof brief.
But I'm telling you, the best way to start is on the shoulders of a legal
expert. The best expertise is CLE materials. That's Continuing Legal
Education where the "expert" lawyers teach the rest of the bar. It's much
better than academic material (those that can't do teach).
2 + 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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------------------------------
From: [EMAIL PROTECTED] (D. Spider)
Crossposted-To: comp.sys.mac.advocacy,comp.os.ms-windows.advocacy,comp.unix.advocacy
Subject: Re: Inferior Engineering of the Win32 Platform - was Re: Linsux as a desktop
platform
Date: Tue, 05 Sep 2000 08:46:59 GMT
It appears that on Tue, 05 Sep 2000 05:34:46 GMT, in
comp.os.linux.advocacy Mike Byrns <[EMAIL PROTECTED]> wrote:
>abraxas wrote:
>
>> In comp.os.linux.advocacy Eric Remy <[EMAIL PROTECTED]> wrote:
>> > In article <8oou48$1917$[EMAIL PROTECTED]>, [EMAIL PROTECTED]
>> > (abraxas) wrote:
>> >
>> >>You're wrong, Netscape doesnt ever crash systems running X. It has never,
>> >>ever
>> >>happened to me, and it has never, ever happened to anyone I know, with any
>> >>version of netscape and any version of XFree, accelleratedX and metroX.
>> >>You are
>> >>completely incorrect.
>> >
>> > No, he's not. You can now say you've met someone that this has happened
>> > to. I've had Netscape crash X+SunOS multiple times.
>>
>> I dont think so.
>
>Your opinions don't really factor into this. OSs crash. Denying it won't help :-)
>
>> > (Yes, locked up
>> > bad enough to have no option other than a STOP-A reboot.)
>>
>> Stop-A reboot? Did you not even try to diagnose the problem? You know, you can
>> change init levels from inside the eeprom prompt, brainiac. :P
>
>Probably wouldn't work. Prove otherwise. Either way would your mom know how to do
>that? My Mom knows how to kill processes in Windows 2000 :-)
Make a system that any fool can use...
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From: [EMAIL PROTECTED] (D. Spider)
Subject: Re: Why I hate Windows...
Date: Tue, 05 Sep 2000 08:56:38 GMT
It appears that on Tue, 5 Sep 2000 00:55:22 -0500, in
comp.os.linux.advocacy "Erik Funkenbusch" <[EMAIL PROTECTED]> wrote:
>"D. Spider" <[EMAIL PROTECTED]> wrote in message
>news:[EMAIL PROTECTED]...
<restoring a little context here>
>> >>WOW! You must have one hell of a PC! (Maybe a bit like the Love Bug). I
>> >>haven't been able to run 'doze for more than about 8 hours without
>> >>massive slowdown and crashing. Please tell me how you manage to achive
>> >>this.
>> >>Thanks,
>> >>Ed
</restore>
>> >It's not that difficult. Just maintain your system. Always keep your
>BIOS
>> >and drivers up to date, make sure you prune your registry tree to remove
>> >cruft, delete your cache files every so often, clean out your temp
>directory
>> >every so often, and don't install hundreds of crappy utilities written by
>> >some kid in his basement.
>>
>> I always find it amusing that windows advocates deride linux as hard
>> to use, but turn a blind eye to the registry. If you expect someone
>> that has trouble learning linux to edit their own registry effectively
>> I think you are living in a dreamworld.
>
>I didn't say I do expect general users to be able to. I am saying that
>anyone that's able to configure and maintain Linux certainly should be able
>to. Computers are difficult, no matter what. Microsoft tries to make many
>things less difficult, but there will always come a time when you need
>someone who knows what they're doing, be it MacOS, Linux, BeOS, OS/2, or
>Windows.
However, in context you do seem to be saying this is necessary to keep
windows reasonably stable. I agree, based on my own experience. So you
probably shouldn't be surprised when you hear people bitching about
how unstable windows is.
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