Microsoft: Judgment Day

By Moglen, Eben | The Nation, April 24, 2000 | Go to article overview

Microsoft: Judgment Day


Moglen, Eben, The Nation


Despite all the palaver, the denouement came quickly. Microsoft's decision to walk away from Judge Richard Posner's mediation efforts and to stake its future on overturning Judge Thomas Penfield Jackson's legal conclusions immediately resulted in the release of a judgment no one is going to overturn. Bill Gates, who as a child probably didn't play well with others, has elected to knock over all the blocks rather than share. Judge Jackson, for his part, has brought the Microsoft Era to a certain and devastating end.

The fate of Microsoft is now sealed. Whatever remedy Judge Jackson may eventually decide to impose, Microsoft will be distracted, eroded and dismembered by the avalanche of private antitrust litigation that Judge Jackson's findings of fact and conclusions of law make possible. The most difficult burden for most antitrust plaintiffs is that of proving that their adversary possesses monopoly power in the relevant market; the second most difficult is that of proving that their adversary's actions constituted an attempt to achieve or maintain that monopoly power by forbidden means. Now any firm that believes that Microsoft has deprived it of fair opportunities to compete in the market for PC software need not prove either of those matters. Jackson's judgment means that the facts he found last November are unassailable by Microsoft in other litigation, the effect of what lawyers call "collateral estoppel." In order to recover antitrust damages, which under the Sherman Antitrust Act are triple their provable monetary losses, firms need only prove that Microsoft's conduct--as a proven monopolist that maintained its monopoly by illegal means--caused them monetary harm. Microsoft faces at least a decade of litigation with all the market participants it has threatened, knee-capped or destroyed. Gates's e-mail, that reservoir of documented commercial knavery unprecedented in the history of American antitrust litigation, will be in constant demand. The litigation will constrain Microsoft, opening opportunities for new competitors to emerge free of the hitherto omnipresent concern with Microsoft's probable response to each and every attempt to create new protocols and possibilities for the Net.

By the evening of April 3, mere hours after release of the judgment, the nature of the Microsoft response was clear. The right of appeal, the company said, would result in Microsoft's exoneration. But that is unlikely--even if the case goes all the way to the Supreme Court. Judge Jackson's legal conclusions are painstakingly related to his factual findings, which no appellate court will disturb unless they are "clearly erroneous," a standard that is unlikely to be met in the mind of even the most skeptical appellate judge. Jackson's application of antitrust doctrine in his opinion, which accepted most but not all of the plaintiffs' legal theories, was deliberately orthodox, not experimental or innovative in any respect. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Microsoft: Judgment Day
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.