Re: Windows 2000 Banned in Germany

["Lewis A. Mettler" <lmettler@lamlaw.com>]

Doug,

Doug Masson wrote:
> 
> On Sat, 4 Dec 1999, Mitch Stone wrote:
> 
> > --- From a message sent by Paul Rickard on 12/4/99 10:25 AM ---
> >
> > >hopper@omnifarious.mn.org
> > >
> > >>    That being said, Scientologists are a scary evil cult.  We don't
> > >>need to go there on this list though.  :-)
> > >
> > >   Anybody else see the movie Bowfinger? Exactly. Now if only the US
> > >government would find excuses to ban Windows 2000...
> >
> > They've already got one: Microsoft is a monopolist in the opinion of an
> > esteemed member of the federal bench. And no, I don't expect that to
> > change anything.
> >
> 
> I think someone has already suggested this in one context or another, but
> the federal government could go a long way toward dismantling the Windows
> monopoly if it would simply refuse to use machines with Windows in federal
> operations.

Sorry.  But the federal government can not do that.  The government can
not either deal nor refuse to deal with any company simply upon the
basis of its monopoly status.  The government could have been more
vigilant in requiring that systems put into secured situations actually
passed their own requirements.  Apparently NT 3.51, Service Release 3 is
the only system ever to pass the C2 security qualifications and then
only if the system is NOT networked.  Yet the Government bought NT 4
systems for secured installations and applications in violation of their
own guidelines in that regard.  Microsoft Corporation intentionally
misrepresented their own qualification on that regard and the federal
government was stupid enough to set their own requirements aside.

The government is not even bringing the antitrust action on its own
behalf.  It is doing so on behalf of the people and as part of its
obligation to enforce the federal laws not because the government wants
to harm or penalize any company.

What Germany may or may not do is up to them and their politics. 
However, it is my understanding that Unix and Linux are both very
popular in Germany and in much of Europe.

As to the opinion of esteemed members of the bench, you have to very
careful.  The appellate court that Microsoft likes to quote all the time
clearly expressed their own personal opinions under the guise of a legal
decision (which it was not).  The findings of fact issued by Judge
Jackson are NOT HIS OPINIONS AT ALL.   They are his "findings of fact"
or "findings of the truth".  Personal opinions of judges are of little
importance.  Findings of fact are not opinions at all.  They are the
legal answers of fact.  The judge's upcoming conclusions of law are not
opinions either.  They are the law until such time as they are
overturned if that should be the case.

It is not a matter of semantics either.  Opinions (such as you get on
this list) can simply be ignored.  Findings of fact can not be ignored. 
Conclusions of law can not be ignored.  Judgments and consent decrees
can not be ignored either (unless you are Microsoft Corporation, it
seems).  Neither can you ignore laws.  Unless you are Microsoft
Corporation, it seems.

I guess you can always ignore the findings of fact and the laws but you
do so at your peril.  Opinions can simply be discarded.  They are little
more than warnings.

This difference is also important when you evaluate someone such as a
mediator, Mr. Posner.  His opinions as published and perhaps know and
understood by many are not in and of themselves important.  Why? 
Because he does not make any findings of fact nor conclusions of law as
part of his duties as mediator.  His only job is to get both sides to
agree between themselves as to what will be the resolution.  His
knowledge and experience helps in that regard but his own decisions or
opinions matter little.  He may be instrumental in pointing out to both
sides their respective weaknesses in the case.  And, he may even offer
his own opinion or assessment of what he thinks Judge Jackson or the
appellate courts might do but that is somewhat unlikely.  It is not his
job to predict the outcome.  Rather it is his job to get both sides to
agree to a solution.  You have to keep in mind here that Mr. Posner will
not have direct access to any witnesses that might be called regarding
possible remedies nor will he have direct access to the financial
advisors that have been recently hired by the DOJ either.  He does have
the findings of fact as issued by the court and he understands antitrust
law.  But, he will not be issuing his own version of the facts nor his
own conclusions of law.  A mediator can only try to get the two sides to
agree.  A judge eventually may have to make the call.  A mediator may
eventually just shrug his shoulders and accept the fact that the
resolution will not happen on his watch.  Neither job is an easy one.  I
think most lawyers would agree that being an advocate is easy compared
to being a mediator or judge.  

-- 
Lewis A. Mettler, Esq.(Attorney and Software Developer)
lmettler@LAMLaw.com
http://www.lamlaw.com/ (detailed review of the Microsoft antitrust
trial)