Linux-Advocacy Digest #947, Volume #28 Wed, 6 Sep 00 06:13:05 EDT
Contents:
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: Sun cannot use Java for their servers!! (Zenin)
Re: Sherman Act vaguery [was: Would a M$ Voluntary Split Save It?] (T. Max Devlin)
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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: Wed, 06 Sep 2000 05:56:20 -0400
Reply-To: [EMAIL PROTECTED]
Said Eric Bennett in comp.os.linux.advocacy;
>In article <[EMAIL PROTECTED]>, [EMAIL PROTECTED]
[...]
>So, you're saying it's never possible to determine if the market finds
>one product is superior to another?
No. I'm saying what we already know is true: the market, not the
producer, is what determines what a 'superior product' is, and the
market is the aggregation of many consumers, each of which have a
different consideration of what might make one product 'superior' to
another.
>I believe our disagreement may largely be over the word "monopoly". As
>I read the court decisions, you are a monopoly if you possess monopoly
>power. That doesn't mean you engaged in antitcompetitive conduct.
No, the court decision says you are monopolizing if you possess monopoly
power. The court doesn't care if you're 'a monopoly'. It is deciding
if you are 'monopolizing', or attempting to monopolize, not whether you
have a monopoly. Not because having a monopoly is outlawed, but because
having a monopoly is impossible, in a free market. Without
monopolizing, you cannot have a monopoly.
Now, the difference, in terms of monopoly power, is that you can have
monopoly power *and not know it*, theoretically, at least. If you have,
through substantial market share or position (market power), the ability
to control prices or exclude competition, if you were to act
anti-competitively in any (even trivial) way, then you have monopoly
power. So long as you never act anti-competitively in any (even
trivial) way, you are not 'a monopoly'. You 'merely' have monopoly
power. (Note, in real life, if you don't act anti-competitively to
maintain such power, you will lose it through market forces; no amount
of superior product or business acumen can maintain monopoly power
legally, though if you stick to such-pro-competitive acts, you can still
maintain the market power.)
'Using' monopoly power, by the way, is acting anti-competitively. If
you weren't already a monopoly, then you are one at that point.
"Enjoying" monopoly power seems to mean, roughly, that you have been
using it for some amount time.
>Under your use of the word "monopoly", anticompetitive conduct is
>assumed, and if that were the case then all monopolies would be illegal,
>but your definition is clearly wrong given the language in some of the
>court decisions I've read, which clearly mention legal monopolies.
Using the archaic definition of monopoly, as a grant from the sovereign
of an exclusive right to sell something, possibly. Chances are more
likely that your eyes read something else, but your mind, guided by the
necessity to plug what you're reading into what you already know (and
presuming that 'popular wisdom' is part of that), saw a clear mention of
legal monopolies.
If not, I'd appreciate a look at what you're thinking of, if you can
track it down.
>> >So if the DOJ uncovers an internal document that says, "I bundled
>> >Internet Explorer with Windows because I wanted to grow sales", it's
>> >legal, but if they uncover an internal document that says, "I bundled
>> >Internet Explorer with Windows because I wanted to increase market
>> >share", it's illegal?
>>
>> Well, that obviously dramatically over-simplifies the argument, but
>> you've captured the issue rather well, yes. One is a competitive
>> strategy, the other is an anti-competitive strategy.
>
>But (a) both could be condemned under per-se tying prohibitions and (b)
>if we use a rule of reason analysis instead of the per se prohibition,
>then you also need to look at the effects on the marketplace.
You're forgetting; bundling in IE didn't grow sales. Anti-competitive
actions taken by businesses that don't have monopoly power, by the way,
are *anti-competitive*. They make the company less capable of
competing.
So when a big company does something anti-competitive, and it *doesn't*
inhibit their ability to compete..., they're a monopoly.
>For
>example, if 100% of all customers wanted the bundle anyway, it would be
>illogical to prohibit Microsoft from offering the bundle, regardless of
>what Microsoft's motivation was.
Microsoft's motives would be rather clear in that situation, wouldn't
you think?
("[W]e assume that economic actors usually have accurate perceptions of
economic realities"). Moreover, over the past several years, Microsoft
has comported itself in a way that could only be consistent with
rational behavior for a profit-maximizing firm if the firm knew that it
possessed monopoly power, and if it was motivated by a desire to
preserve the barrier to entry protecting that power."
>> It isn't even that you have to want to exclude competition. Simply
>> trying to get the power, whether you 'use' it or not, is
>> anti-competitive. You don't even have to know or intend it to be
>> anti-competitive. If it *is* anti-competitive, its illegal restraint of
>> trade.
>
>That's false. Attempted monopolization is not illegal unless the court
>determines that it had a "dangerous" chance of succeeding.
You're confusing the prosecution with the defense. If you are charged
with attempted monopolization, you can defend yourself with one of three
sure-fire bits of evidence:
1) You didn't intend to monopolize
2) You didn't try to monopolize
3) You couldn't have monopolized, even if you wanted to and you'd tried.
This is the 'dangerous chance of succeeding' you're talking about. You
might as well say "attempted murder is not illegal unless you might have
killed the guy". Which is to say it is true, but meaningless in terms
of statements about what is illegal or not.
>That's quite
>clear in the existing case law, even though it is at odds with a literal
>interpretation of the Sherman Act's prohibition on *all* attempts to
>monopolize. The court simply hasn't taken the act literally.
No, they've simply taken the law seriously. One cannot enforce a law
that has no defense. Even in attempted monopolization cases (or should
I say especially in attempted monopolization cases), you are still
innocent until proven guilty.
>BTW, Jackson relied on this precedent in his ruling... he said that
>Microsoft did have a dangerous chance of monopolizing browsers, and
>therefore their conduct met the test for illegality.
He also said the opposite, sort of. When he found Microsoft 'not
guilty' on the restraint of trade charge for the 'exclusive contracts'
they used to try to shut Netscape out of the Browser market. This
wasn't a monopolization charge, though, so it wasn't 'attempt to
restrain trade' that they were being tried for. The only reason the
charge didn't stick is because the effort didn't entirely succeed; MS
shut NS out of many channels of distribution, but that's not a crime per
se. MS did, however, succeed in 'tying', which is also punished under
restraint of trade, Section 1, rather than Section 2 monopolization.
>> >The decision is the same, but the basis for each decision is different
>> >in the manner you described.
>>
>> Correct. The reason this is a gedanken experiment is that the actions
>> resulting from that decision are not actually going to be identical.
>
>The action was the same, by construction: the bundling of a browser with
>the OS.
Not in the same way with the same announcements at the same time. One
judges pro/anti-competitive on the results, not the construction of the
strategy. If MS *had* been literally trying to improve the product by
bundling, they'd have done things quite differently.
"This Court concludes that Microsoft's decision to offer only the
bundled - "integrated" - version of Windows and Internet Explorer
derived not from technical necessity or business efficiencies; rather,
it was the result of a deliberate and purposeful choice to quell
incipient competition before it reached truly minatory proportions."
This issue, of course, leads us back into the 'technical tying' bit, but
I presume you're willing to concede that the situation would be the same
regardless of whether you think this was just 'adding a feature'.
Jackson performed the same requisite judgment when he said, on the
initial OS monopolization charge, in the earlier quote. Microsoft would
not have bundled IE competitively; there is no benefit to it.
>> The point of the text of the Grennell quote "as distinguished from" is
>> wholly and explicitly a statement that they *are* mutually exclusive.
>> Acquisition of monopoly power can come from growth, yes. Growth can
>> come from or lead to acquisition of monopoly power. None of this makes
>> growth illegal, nor monopoly power legal.
>
>Wrong. To quote Vakerics again:
>
>=====
>[In U.S. v. du Pont, the] Court noted further that the legislative
>history of the Sherman Act clearly indicates that a monopoly acquired
>and maintained as a result of superior skill or intelligence is not
>illegal.
>=====
>
>See that? There are monopolies that are not illegal. When T. Max
>Devlin's book on antitrust appears on the shelves at the Cornell Law
>Library along side Mr. Vakerics's book, then I'll reconsider your
>arguments. Until then, forget it.
Look, I can't take responsibility for every *other* persons
interpretation on the planet, OK? Yes, I *know* I didn't write a
textbook called "anti-trust law". What the hell does that have to do
with it?
Did Vakerics ever mention whether such a 'monopoly' was *possible*?
Apparently, an earlier author, in a book called The Wealth of Nations,
disagreed. For that matter, its possible the judge, or the author in
his interpretation, never really figured out why Justice White, in the
Standard Oil decision, said, quite clearly, that the only reason
"monopoly" itself was not outlawed was because the market will prevent
such an occurrence to begin with, and to directly outlaw it would merely
prevent the right of contract from being exercised.
As far as I can see, that statement is accurate; the law does not
indicate that monopoly acquired in these ways is illegal. That doesn't
say that they are legal, nor does it say that such legal monopolies
'exist', as you've stated. Why don't you remind me which duPont
decision Vakerics referred to there, and I'll see what it says. I'd
assumed it was the cellophane case, but I searched for 'intelligence'
and then went through every occurrence of 'illegal', and couldn't find
anything. The closest I could find is the phrase "monopolization of
which may be illegal", but it appeared to be speaking in the abstract.
I also found this, which I remember I wanted to post some time ago but
couldn't locate:
"This approach to the determination of monopoly power is strengthened by
this Court's conclusion in prior cases that, when an alleged monopolist
has power over price and competition, an intention to monopolize in a
proper case may be assumed.
The inference seems, to me, to be that said 'intention to monopolize'
cannot be part of an attempted monopolization charge, as the
monopolization itself is what is alleged. Therefore, the only reason
intent to monopolize would be mentioned is because it is a reference to
'benefit of the doubt'.
You have to remember, on the face of it, the court's interpretation of
Sherman is "if you do it, and it decreases competition, you've committed
a crime." It stands to reason that the 'rule of reason' must therefore
cut both ways, and provide that if you didn't intend to decrease
competition, but it did decrease, its *possible* it wasn't your action
which decreased it. The benefit of the doubt is where all this
'monopoly is not illegal' crud comes from. The courts are forced to
recognize it. As consumers, we should not be giving any producers any
*benefit of the doubt*. That is, quite frankly, the whole crux of the
issue to me, and the only reason I care what senseless platitudes some
people use in place of an understanding of the law.
>If you want to argue that the law should be changed, that's different.
I'd rather just change the text books. The law is fine as it is.
[...]
>Even monopolies are temporary states of affairs. It's simply much
>harder to dislodge them, so they last a lot longer.
Look, you see, you can't say that monopolies are 'temporary' until the
market dislodges them. The market never allows them to occur to begin
with! Anti-competitive action is the *only* way to gain a monopoly, the
*only* way to maintain it, and the *only* way to use it. Everything
else, the rule of reason, the 'legal monopolies', the temporary
monopolies, these are all simply "innocent until proven guilty". Yet,
despite all that, proving you *have* a monopoly is sufficient evidence
that you *monopolized*, which is illegal, that the *defendant assumes
the burden of proof* to claim they *didn't* monopolize.
How much more bloody obvious does it have to get?
It is illegal to have a monopoly. Either that, or its a miracle.
Vakerics and the judge in duPont may have been excellent lawyers, but
they certainly weren't businessmen. Businessmen don't bother saying the
laws of the United States don't make illegal what the law of supply and
demand makes impossible.
>> Look; I'm well aware that there are countless examples, even within the
>> most authoritative sources, of the word "monopoly" being used in a
>> similar way to the one I'd like to get rid of.
>
>Why are you trying to argue with "the most authoritative sources"?
I'm not. I'm arguing with your interpretation of the most authoritative
sources.
>It's those sources who determine the proper legal meaning of the word,
>not some random Joe posting to Usenet. If you want to use the correct
>legal definition of the word, you need to use the word the authoritative
>sources use. If you want to use some other definition, that's fine, but
>it's not legally relevant.
You are the one who keeps proclaiming I want to redefine the word. I
just want to redefine 'popular wisdom' about what's legal. Neither the
authorities nor I dispute the fact that the law does not outlaw having a
monopoly. That is not the same thing as making monopolies legal, nor
even preventing monopolies from being illegal. Something doesn't have
to be directly outlawed to be illegal, if evidence that its been done is
provided, and all courses which could have led to that condition are
outlawed.
[...]
>I have no trouble reconciling the definition I am using with the
>existing precedents. It makes perfect sense, and the authoritative
>sources agree with me.
I can, and do, say the same thing. Its you who disagrees with me, not
the precedent nor the authorities.
>I might as well decide that I don't like the word "blue", and try to
>convince the rest of the world that the sky is red instead of blue.
>Sure, if I worked hard enough, maybe I could get everyone to use "red"
>to describe what used to be known as "blue" and vice versa... but why
>bother???
Do you know what engrossing, forestalling, or regrating mean? I don't
like those words, neither did Senator Sherman. Talk to him.
>> "Its not illegal to have a monopoly, its only illegal to engage in
>> anti-competitive activities" would probably be optimum,
>
>That is fine with me. In which case, the first part of the statement
>stands just fine on its own... "It's not illegal to have a monopoly."
>But you keep disagreeing with that.
Because it doesn't stand on its own at all, except as an empty platitude
which can only possibly be used (note: CAN ONLY POSSIBLY BE USED) to
defend monopolizing, which is a felony.
>There's nothing silly about it. Say what you want about market theory,
>but it's obviously the law that determines what is illegal, not market
>theory.
I simply canNOT believe you're willing to go on and on with this. You
want to stand on pretense and posturing because you don't like my trying
to point out truth of the matter, fine. I won't argue with you anymore.
You've said your piece, and I've spent enough time hearing you out.
Thanks for your helpful information and clarifications.
It is illegal to have a monopoly.
--
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: Wed, 06 Sep 2000 05:58:46 -0400
Reply-To: [EMAIL PROTECTED]
Said 2 + 2 in comp.os.linux.advocacy;
[...]
>>How could anybody even question whether browsers were a separate market
>>from operating systems, or that Microsoft combined the two by
>>'integrating' IE into Win98? Even Microsoft must admit this. They just
>>don't understand why its illegal, they can't deny they did it.
>
>Are you saying reasonable people can't disagree on this?
Yes.
>This is classic Max. When the trier of law is the anybody, ie the appeals
>court, [...]
The controlling decision is Judge Jackson's, not the Appellate Court's
previous decision, which was based on different grounds and had no
discovery.
--
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 ======
http://www.newsfeeds.com - The #1 Newsgroup Service in the World!
======= 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: Wed, 06 Sep 2000 06:04:53 -0400
Reply-To: [EMAIL PROTECTED]
Said 2 + 2 in comp.os.linux.advocacy;
>I'm going to do what I have suggested others do, ie set out an Elements of
>Proof, in this case.
>Elements Necessary (Key in Microsoft Case Only)
>I Sherman Act Violation- requires both I and II Cites
>A Possession of Monopoly.
>1. Control Prices
>2. Can Exclude Competition
>3. Benefit to Consumer. Some would disagree on whether this one is
>necessary.
[...]
I wouldn't disagree on whether it is necessary; I would say it is
entirely out of place. It is obviously lifted from the 'per se' rule
for technical tying, which is considered a restraint of trade, not
monopolization. Including it here can be nothing more than a method of
attempting to defend a monopoly on the grounds it 'didn't do any harm',
a position which is not supported in any way by legal understanding of
the law against monopolizing, AFAIK.
Having a producer in the market which has the ability to control prices
(even raising them a bit above what competitive competition would
otherwise allow) or exclude competition (including suppressing
development and attempts to enter the market by initially tiny
competitors, who may indeed bring superior characteristics or additional
price competition to the market) is never of benefit to the consumer,
regardless of what 'trade offs' YOU may be willing to give in order to
defend your favorite monopoly.
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. --
====== Posted via Newsfeeds.Com, Uncensored Usenet News ======
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======= Over 80,000 Newsgroups = 16 Different Servers! ======
------------------------------
From: Zenin <[EMAIL PROTECTED]>
Crossposted-To:
comp.lang.java.advocacy,comp.lang.java.programmer,comp.os.ms-windows.nt.advocacy
Subject: Re: Sun cannot use Java for their servers!!
Date: Wed, 06 Sep 2000 10:05:36 GMT
Simon Cooke <[EMAIL PROTECTED]> wrote:
: "Jon Skeet" <[EMAIL PROTECTED]> wrote:
:> [EMAIL PROTECTED] wrote:
:> > > > I'd also be interested to know if NT/W2k has anything comparable to
:> > > > 4.4BSD's sysctl, that is a way to drastically reconfigure a running
:> > > > system's kernel on the fly without reboot or other interruption.
:> > > >
:> > > Or the Linux ProcFS which also alows on the fly kernel reconfiguration
:> >
:> > Why would it need to? You can't recompile the kernel for NT/W2k.
:> >
:> > Whether it exists at all (used at MS for on-the-fly development work) is
:> > another matter -- they're the only people who'd ever use that.
:>
:> You think that just because a kernel can't be recompiled, you shouldn't
:> be able to reconfigure it? What rot! Not all machines are used in the
:> same way - being able to reconfigure things like socket timeouts, network
:> connection limitations etc is vital for heavily-loaded servers.
:
: I wouldn't call that reconfiguration... in the post I was replying to, I
: was assuming it was something a lot heftier -- not just changing a few
: variables on the fly.
It is "a lot heftier", although now I'm rather curious as to how you
would define "reconfiguration" of a kernel.
--
-Zenin ([EMAIL PROTECTED]) From The Blue Camel we learn:
BSD: A psychoactive drug, popular in the 80s, probably developed at UC
Berkeley or thereabouts. Similar in many ways to the prescription-only
medication called "System V", but infinitely more useful. (Or, at least,
more fun.) The full chemical name is "Berkeley Standard Distribution".
------------------------------
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: Wed, 06 Sep 2000 06:10:28 -0400
Reply-To: [EMAIL PROTECTED]
Said 2 + 2 in comp.os.linux.advocacy;
[...]
>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.
The phrase is cited repeatedly *because* it is a legal principle,
*establishing* the link between the cases *outside* of the fact, which
vary.
[...]
>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.
Quite true. If consumers are going to be trained on points like this,
I'd rather it be "all anti-competitive acts are illegal", which is the
entirety of the Sherman Act in law, and will stand them a sight better
in consumer analysis. I'm not arguing with what the courts find
illegal, and never have, that is the point. I'm arguing against the
'popular wisdom' which seeks to defend monopolizing, which is,
specifically and pointedly, a criminal activity.
--
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! ======
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