U. S. Court of Appeals for the District of Columbia Circuit February 26-27, 2001
"Let the Bitch Slapping Begin"
The United States of America vs. Microsoft Corporation 

What the Court of Appeals is doing to the DOJ and Judge Jackson
(Image from www.bitchslapped.com)

Okay, time for a little political rant here. I think it is so important, that it deserves its own chapter in the NSX-Files. Over the past four years or so, the DOJ lead by Joe "Stop the White Pan Bread Monopoly" Klein, Janet "I don't really use a computer" Reno, and David "I can act like Al Pacino and distort the facts" Boies got Judge "Pinhead" Jackson to rule that Microsoft is a predatory monopoly, and it must be broken up. 

As most of you know, The Court of Appeals heard oral arguments from the DOJ and Microsoft on February 26/27, 2001.  Last year, the press, the government, and the DOJ generated tons of negative publicity about how Judge Jackson found Microsoft guilty, and ruled to breakup Microsoft. David Boies, Joe Klein, and Judge Jackson rejoiced and smiled like they cured hunger, poverty, and crime all in one fell swoop. However, I find it curious that there isn't a lot of publicity about what the Court of Appeals said this week.  This should be on the headline of every newspaper and on the cover of every magazine in America.

I think it is because the press doesn't understand the significance of what just happened. That, and that the press is chasing down Clinton for his wacky pardons, instead of chasing down why the stock market lost 298 billion dollars in people's Microsoft stock. True, the pardons don't put Clinton in a good light, but then again didn't George Bush pardon the people involve in the Iran Contra Scandal,  and didn't Ford pardon Nixon for his extensive coverups in the Watergate burglaries?  All pardons are controversial.  Are Clinton's set of pardons worse than Bush's and Ford's?  I think not.  I would rather have Nixon in jail instead of Mark Rich.  I would rather have the Watergate burglars and perjurers in jail instead of Mark Rich.  But I digress.....

If you understand PC technology (what a browser is, what an API is, and what a developer does for a living) and basic human logic (meaning if A=B, and B=C, then A=C), you might find the Oral Arguments interesting also.  It is interesting and more insightful than any book  you can buy at the bookstore.  But then again, interesting probably isn't the right word. You might find it absolutely hilarious, like my wife and I did when we read the full transcripts. (but it will be easier for you to read the excerpt links below.  Here are the links to the full transcripts for  February 26th and 27th.)  The Court of Appeals judges just rip into the heart of the government's case like a rusty knife, meaning that they make the DOJ feel pain and suffering through this hearing. (note:  the links for the 26th and 27th point to the raw file, it is best to copy and paste into Word and reformat the text to make it readable).  Anways, below I took the best parts of the Oral Arguments, and made some excerpts from them.  Let me know if you like the commentary....(or if you disagree with the commentary)

Some Excerpts from the Trial Records of the 
Oral Arguments presented to the Appeals Court

Below are links to excerpts from the proceedings of the Microsoft vs. Department of Justice on February 26th and 27th. I took the data from Microsoft's website, and then formatted it so it was a little easier to read. Take a look, and see what it is like to be on the hot seat in front of seven judges who appear to be **really smart**. I mean these judges are the cream of the crop, as you can't pull the wool over their eyes (Judge Pinhead Jackson, are you listening?). They are quick and sharp on the draw to their line of questioning, and will destroy any arguments that contains faulty logic.  I also added comments in (Red Parenthesis) as to what my interpretation of what the Judges were thinking as they asked their questions to the DOJ.  

Caveat:  Lots of cursing in the stuff below.  But this was just my view of what the Court of Appeals was saying to themselves during the oral arguments.  They are cursing because they are outraged, like I was outraged, as well as stockholders around the world.  I encourage you to check out the below articles, and make yourself more knowledgeable on this topic, and tell all your friends how ridiculous the DOJ's case is against Microsoft.  

Excerpt #1 - February 27th, 2001. The DOJ is telling the Court of Appeals how Microsoft attempted to "monopolize" the market. The Court of Appeals is trying to figure out what the DOJ means by "market".  The Appeals judges rip him to shreds, and it is hilarious.

Excerpt #2 - February 27th, 2001 - DOJ Reasoning on why Microsoft should be broken up and how it should be broken up.  The judges attack the government's case and the government's logic.

Excerpt #3 - February 27th, 2001 - The Court of Appeals is questioning the DOJ on Judge Jackson's comments to the press that happened DURING the trial. The Judge Pinhead was comparing Gates and Microsoft to similar the Newton Street Crew(notorious criminal gang), drug conspiracies, and Napoleon, and talking to the press, while the trial was still in progress.  The Court of Appeals are outraged by Judge Jackson's actions, and bombard the DOJ with questions. 

Excerpt #4 - February 26th, 2001 - The DOJ is trying to tell the Court of Appeals that Microsoft violated Section 2 of the Sherman Anti-Trust Act through a campaign of anticompetitive acts to protect its operating system monopoly. (This is a little tougher to follow than the previous three excerpts, but it is interesting in terms of how smart the Appeal Court judges are on this topic)

Excerpt #5 - February 26th, 2001 - DOJ is trying to tell the Court of Appeals that some customers want a browserless operating system.  Yeah right.  Do you want your home computer to come without a browser?  Court of Appeals grills DOJ on ISP/IAPs shipping a browser, is that also "tying" in the DOJ's definition?

The Court of Appeals is restoring my faith in the judicial system of this country. The United States of America is the best country in the world, as where else can you see justice played out like this with scholarly people?  If I can have any job in the world, it would be a Test Driver for Ferrari, and my second choice would be to be an Appeals Court Judge, as these guys are brainiacs.

Miscellaneous Comments

The effect of the Judge Jackson's earlier ruling can be measured to a certain extent in that the stock price of Microsoft dived from about $119 into the $40's for a bit, and now it has stabilized around $57 right now. Which means that market capitalization of Microsoft went from about $600 billion to $302 billion. (Yeah, I know part of it is because of the stock market crash in general, but most of the damage was done prior to the recent NASDAQ crash) 

Now, those of you who are anti-Microsoft might think this is good, and that Bill Gates and those spoiled software geeks don't need that huge amount of disposable income. Except, you boneheads, this means that a good portion of that 298 billion dollar loss came from people who have 401k plans, who buy mutual funds, who buy stock on the open market. This money was sucked out of the hands of elderly people who are retired and on a fixed income. More importantly, it sucked money out of the hands of many Go-Fast Crack Pipe addicts, meaning it wiped out many people's racing fund……….and you know who we are talking about…..

As soon as it was apparent that the Court of Appeals desperately wanted to hear this case about six months ago, and got the approval to do so, Joe Klein suddenly bails out of his job and goes to Bertelsmann. Kinda curious, wouldn't you say? David Boies takes off and tries to help Gore win a recount (and loses) and tries to save Napster (loses again). In any event, you don't see Boies trying to take this case in front of the Appeals Court Judges. It seems like Joe and David ran off like scared little boys with doody in their diapers as soon as they heard that the Court of Appeals practically demanded to hear the case, and they were going to use seven judges instead of three judges to hear the case.  I think deep down Joe and David know that the case isn't going to hold any water in front of smart judges, and that their grandstanding was only effective in front of the press and Judge Pinhead Jackson.


Okay, so if you took to the time to read the above excerpts, I think you will come to the same conclusions that I do:

  1. The Court of Appeals Judges are smart, and they are PISSED, because they ruled on this once before, and the lower court ignored them and brought a similar case BACK to the Court of Appeals.  They don't see any tying issues.  They don't see any predatory pricing.  They don't see any Sherman anti-trust violations.  They don't see any rational way to break up Microsoft.  
  2. The DOJ's case looks weak.  Very Weak.  The Court of Appeals even shot down some of what the lower court offered as "Fact", since there were no facts to support some of their conclusions.
  3. The Court of Appeals Judges probably want to NEVER see a case like this again for a 3rd time.
  4. The Court of Appeals probably wants to send a message to the rest of the state attorney generals who claim they will take this case on individually should the DOJ lose.

Therefore, in my opinion, I think the Court of Appeals will throw out the ENTIRE case, as they need to send a message to the DOJ and the government that there is no valid case here, and to never waste their time again on frivolous suits like this.  Microsoft will be declared innocent of all charges, or maybe just get a small slap on the wrist.  Then, hopefully the Microsoft stock price will rise, Microsoft can focus on Windows XP and Office XP launch, Microsoft will cause the entire PC industry to upgrade to the new operating systems and applications, so people will buy new PC hardware, thus re-stimulating the NASDAQ to get back up to the 3500 level so we can get our racing fund back up to normal!

Other older Pulp Articles on this case from previous years.  More random stuff here.