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Feature: Government

DOJ stands with Microsoft

By Joe Barr on March 31, 2004 (9:00:00 AM)

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R. Hewitt Pate, the U.S. Assistant Attorney General for Antitrust, issued a statement last week about the European Commission's ruling against Microsoft. Far from being on the side of consumers and a free market, Pate's remarks nestle cheek to jowl with the monopolist itself. It even threatens -- on Microsoft's behalf -- the relationship between the United States and the EC if the Europeans dare to act like sovereign nations and put the interests of their citizens ahead of Redmond's. It's like waking up one morning to find your district attorney, who has sworn an oath to protect you from the bad guys, issuing press releases on behalf of the biggest crook in the county.

NewsForge contacted the Department of Justice requesting an interview with General Pate to discuss the statement, but the DOJ declined our request. A DOJ spokesman explained that they believe the statement stands on its own. Perhaps it does, although "stand" may be too strong a word.

Pate wrote: "The United States' Final Judgment provides clear and effective protection for competition and consumers by preventing affirmative misconduct by Microsoft that would inhibit competition in 'middleware' programs, such as the web browser that was the subject of the United States' lawsuit and the media player that is the subject of the EC's action today."

Since it is clear from Microsoft's behavior with Windows Media Player that the "Final Judgment" has done nothing to prevent Microsoft from doing as it did with the browser -- and for as far as the eye can see, with any and every new innovation to come along -- Pate's comment lacks internal consistency. The two ends of the statement wiggle against the sharp barb of truth which skewers it.

Clear and effective protection for competition? Every clueful pundit in the technical world has weighed in with the observation that the settlement has done nothing at all except perhaps to strengthen the monopoly's grip on the industry. Indeed, many feel that it gives Microsoft a stronger basis than ever to continue its predatory, illegal, anticompetitive acts. Pate's statement is prima facie evidence that such a view is correct. It is indistinguishable from a Microsoft press release. And it shares all the credibility and integrity that implies, even though was issued by the United States Department of Justice.

Pate's innovative view of reality doesn't end there. He went on to say "The Final Judgment, for example, prohibits the use by Microsoft of exclusive contracts or other provisions that inhibit competition, prohibits anticompetitive manipulation of icons and default settings, and requires Microsoft to provide information to allow 'interoperability' of competitors' software."

In fact what it does is to prohibit some of the things Microsoft has done in the past that violate antitrust law. It explicitly leaves the door open for Microsoft to find new ways to break the law today and in the future. That is what is threatened by the otherwise rather weak (except in comparison to the bootlicking settlement "negotiated" by the DOJ) ruling of the EC: the ability of Microsoft to simply change its methods to achieve the same illegal ends. For example, if Microsoft had been found guilty of literally stealing gold from Fort Knox, the plea bargain arrangement "negotiated" by the DOJ would prohibit them from using the same hacksaw to cut the same bars.

Pate protested the fact that the EC ruling requires "code removal." He wrote "The EC has today pursued a different enforcement approach by imposing a 'code removal' remedy to resolve its media player concerns. The U.S. experience tells us that the best antitrust remedies eliminate impediments to the healthy functioning of competitive markets without hindering successful competitors or imposing burdens on third parties, which may result from the EC's remedy."

What our experience in the United States actually tells us is that the natural collusion of corporate greed and bureaucratic corruption is strong enough not only to protect the monopoly from any and all meaningful restrictions on its behavior at home, but to actively and publicly shield it from remedies beyond our borders. Or in the words of Pate's statement, "Sound antitrust policy must avoid chilling innovation and competition even by 'dominant' companies."

As inane and insane as it is to speak of chilling innovation at Microsoft, there is a chilling aspect to the DOJ statement. Pate says "The continued success of this working relationship is particularly important in the context of global markets, where the sale and use of products stretch across borders." He threatens whatever goodwill might be left between the U.S. and its European allies on behalf of predatory monopoly.

I am not a lawyer, but I watch TV shows about them. I heard a line at the end of one of them Friday night that seems particularly applicable to this situation. A woman is explaining to a co-worker that her father had been a law professor. He always explained to his students, she said, that the goddess of Justice was not blindfolded so that she could dispense justice impartially. Instead it was to keep her from having to see what was being done in her name. Were she to see Pate's statement on the EU ruling, she might run off in search of a more permanent way to avert her gaze. Like a hot poker to gouge her eyes out.

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Point out it was 2 *American* companies that...

Posted by: Anonymous Coward on March 31, 2004 05:19 PM
Why is it that DOJ sees it so important to defend Microsoft against the evil Europeans, when the whole EU complaint process was originally set in motion by two American companies (Sun and Real Networks).


Maybe it is that they have paid politicians too little compared to Microsoft?


(Even the EU sanctions are actually rather useles and I really don't expect them to reform the competition situation in any significant way).

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Re:Point out it was 2 *American* companies that...

Posted by: hardcode57 on March 31, 2004 06:32 PM
It's the principle: the US doesn't want Europe regulating US companies, full stop. The ideal situation from the DOJ's point of view would be to get US corporations to behave at home in return for a license to rape and pillage abroad.

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Re:Point out it was 2 *American* companies that...

Posted by: Anonymous Coward on March 31, 2004 07:46 PM
"at home" is not applicable in a global economy. The nation state is dying so slowly you think it is still alive.

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Re:Point out it was 2 *American* companies that...

Posted by: OwlWhacker on March 31, 2004 08:06 PM
This is the point. The world is shrinking. The New World Order, with it's globalization and inter-dependence, is what world leaders are striving for. If the US isn't going to play ball then there are higher powers at work that will need to be faced.



If the US is going to raise its head and attempt to lead the world unjustly, surely people will rally round the leader that is just (the EU)? This could make things much worse for the US, especially considering world-US relations at the moment.



Maybe this is what the government (or secret government) really wants? Maybe it's time for a change of the constitution?



<A HREF="http://www.sonic.net/sentinel/gvcon6.html" TITLE="sonic.net"> FEMA </a sonic.net> anyone?

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Re:Point out it was 2 *American* companies that...

Posted by: Bob Dowling on March 31, 2004 09:04 PM

Personal note: I am a eurosceptic, Linux-using, Microsoft-hating, economically right-wing, socially liberal Brit. This colours my comments somewhat.


If the US is going to raise its head and attempt to lead the world unjustly, surely people will rally round the leader that is just (the EU)?

I wouldn't hold out much hope for the EU. They are just as incompetent and corrupt as the US government appears to be. (I'm a Brit, so I see US politics through a very noisy channel.) True power is concentrated in the European Commission which is a committee of eurozealots appointed by the member governments. The directly elected European Partliament is mostly toothless.


The Parliament has shown claws only once that I can remember. When the European Commission's own auditors refused to accept the EU budget for the Nth year in a row because of corruption and downright theft they forced the Commission's mass resignation. The replacement Commission is no better.


To get some idea of the contempt that the MEPs (Members of the European Parliament) feel for their constituents, consider the recent scuffle over software patents. A huge grassroots campaign was launched to lobby MEPs. One MEP actually complained about the number of people contacting her (I think it was a woman) saying that it distracted her from her work.


In short, don't look to Europe for salvation. Sorry.

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SW patents and MEPs

Posted by: ruohtula on March 31, 2004 09:24 PM
Nevertheless, the europarlament is more or less the only thing that stands between a sane situation and zealously unlimited patentability of SW in Europe, and they made a surprisingly sensible decision last fall about it, which unfortunately may not stand against the commission...<nobr> <wbr></nobr>:-(


I think it was Alan Cox himself who suggested that in the upcoming EU elections everybody who cares should vote for candidates and/or parties that are against software patents, even if you otherwise would not give a damn about the europarlament. Given how apathetic EU elections normally are, mobilizing all EU geeks could then make a surprisingly big difference...


I think the above is at least worth trying.

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Re:Point out it was 2 *American* companies that...

Posted by: OwlWhacker on March 31, 2004 09:55 PM
I wouldn't hold out much hope for the EU. They are just as incompetent and corrupt as the US government appears to be.



Whether or not this is true, or whether anybody believes it, makes no difference. This incident could get people behind the EU.



This is one reason why the US should cease with this unjust protection of Microsoft, unless the US Government wants something drastic to happen, or whether this is one big ploy to get everybody behind the EU.

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Re:Point out it was 2 *American* companies that...

Posted by: Anonymous Coward on April 01, 2004 02:41 PM
Maybe it's time for a change of the constitution?


What US constitution?



The last I knew, Mr. Clinton got passed through congress an international treaty(GATT) which had been worked on by G.W. Bush Sr. that sold us out to the UN. All of this was done behind a smoke screen provided by the O.J. Simpson Trial with the media so that no one would ask too many questions.



And these guys were swarn to uphold the US Constitution!!!



Now without a constitution that makes them consider the other guy, they think they can tell the whole world where to go.



I know some good, worthwhile US citizens -- but they aren't involved in our screwed up political mess.

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Re:Point out it was 2 *American* companies that...

Posted by: Anonymous Coward on April 01, 2004 08:25 PM
The last I knew, Mr. Clinton got passed through congress an international treaty(GATT) which had been worked on by G.W. Bush Sr. that sold us out to the UN.


Uh? I always thought GATT was about selling the rest of the world to the USA.


Funny how things look different, depending on where you live...

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Re:Point out it was 2 *American* companies that...

Posted by: Anonymous Coward on April 02, 2004 12:55 AM
You only say that because...well because it's true.

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This will do nothing for world-US relations...

Posted by: OwlWhacker on March 31, 2004 07:48 PM
Pate wrote: "The United States' Final Judgment provides clear and effective protection for competition and consumers by preventing affirmative misconduct by Microsoft that would inhibit competition in 'middleware' programs, such as the web browser that was the subject of the United States' lawsuit and the media player that is the subject of the EC's action today."

"clear and effective protection"?

"preventing affirmative misconduct"?

Perhaps this is what the final judgement should have provided, but reality leads us to believe otherwise.

Microsoft got a slap on the wrist, and most of the news articles written at the time of the judgement were saying as much. Even Microsoft supporters were shocked at how Microsoft had got away with it's illegal practices.

If indeed there was a judgement that provided this, why would so many people be of the opinion that Microsoft got away unscathed? Why are we seeing Microsoft still acting anti-competitively?

Pate protested the fact that the EC ruling requires "code removal." He wrote "The EC has today pursued a different enforcement approach by imposing a 'code removal' remedy to resolve its media player concerns.

One has to ask the question, what was middleware code doing so deeply embedded into the operating system in the first place? Especially after the US anti-trust case? Isn't this proof that the US judgement was innefective and will remain ineffective toward future threats?

It seems that the US has failed to offer a workable solution with which to prevent Microsoft acting in an anti-competitive manner. Microsoft is still able to maintain its monopoly and stifle competition, what's more, the US seems quite happy to pretend that this is not happening, and is also threatening anybody who says otherwise.

This is bad for the US.

The DoJ defending a convicted monopoly that is based in the US? The US appears as the parent of a spoilt kid. This makes the US look desperate to maintain Microsoft's hold over the world.

Won't this raise fears that Microsoft is closely tied to the US Government?

If Microsoft was a company from Germany, I wonder if the US would have such a lenient attitude?

The question is, if the DoJ doesn't like what's happening, what is it going to do about it? Obviously the US judgement on Microsoft needs revising.

Note: I'm certainly not anti-American, but I do believe in real justice and freedom...

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Re:This will do nothing for world-US relations...

Posted by: Anonymous Coward on April 01, 2004 04:26 AM
Here is an illustration that I like to use to help people to understand how microsoft does business.

Imagine a realestate company named Microsoft.

Imagine that the Microsoft realestate company also made a Microsoft brand of car, a Microsoft brand of washer/dryer, and a Microsoft brand of matress.

Now Imagine if Microsoft also gave every person who bought a house from them a free Microsoft car, a free Microsoft washer/dryer, and a free Microsoft matress.

What effect would this have on competition?

What effect would this cause on the competition who only make cars, or only make matresses?

See the point?

Microsoft is _still_ bundling Internet Explorer with every copy of the Windows Operating System, effectivly giving everyone who buys their Operating System a free webbrowser. They are doing the exact same thing with the Windows Media Player.

What effect does that have on competition?

Jeez, Id really like to buy a clue and give it to somebody at the DOJ.

I am glad to be Canadian. Sorry yanks, but the DOJ sucks big time, nothing personal.

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Re:This will do nothing for world-US relations...

Posted by: Anonymous Coward on April 01, 2004 01:00 PM
I'm like an American, eh. Those hose heads down at the DOJ have screwed things up, eh. Lets go get some donughts and beer.

I've watched Strange Brew one too many times. I am an American and I feel embarrased by this. I voted for Bush. I'm not voting for him this year.

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US Monopoly on computers and IT

Posted by: Galik on March 31, 2004 09:27 PM
After the antitrust trial in the US it was obvious the DOJ want MS to continue just the way it does. The government felt it was better for the economy if one company monopolised computers. Here's why. As long as the monopolising company is American then when that company monopolises computers the world over, American economy monopolises the world over. In short they are happy to let MS monopolise in the US because that helps them monopolise the rest of the world.

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MS-SCO and MS-BUSH and MS-DOJ

Posted by: djf_newsforge on March 31, 2004 10:10 PM
Europe was right about WMD's and they are right about Microscoff.

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its a joke

Posted by: Anonymous Coward on March 31, 2004 10:25 PM
I hope this joker enjoys his job while he has it. because with any luck bush and his corporation uh I mean adminstration will be gone in January.

MS has this adminstration in it back pocket - it's so obvious this just makes it a little more clearer.

pretty soon we will be MS-USA -

when that happens I will personally get my pitchforks and go to redmond.

I am embarrassed to be an american - and I apologize to the EU for his foolish statements.

when will this corporate crap stop in washington.
it is not how our country should be ran and our forefathers are turning in their grave.

Bush getting elected was the best thing to happen to microsoft.

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Re: MsBush

Posted by: Anonymous Coward on March 31, 2004 10:53 PM
Bush getting elected was the best thing to happen to microsoft.

And who do you think paid for his *first* campaign? Anybody else recall the shock and dismay of Bush Sr., the other GOP leaders, and the rest of the Bush clan when Jr. began his campaign - how they swore he wasn't being supported or sponsored by the RNC? (Who were, themselves, engaged in trench warfare about Libby Dole...) And suddenly the white idiot comes riding out of the Texas sunrise with saddlebags fulla gold...

Nobody, to my satisfaction, has explained how someone as untried, unknown, and with such a horrible personal history could possibly have garnered such financial backing. Would *you* bet millions, and the next four years, on a dark horse?

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Re:its a joke

Posted by: Anonymous Coward on April 01, 2004 03:56 AM
because with any luck bush and his corporation uh I mean adminstration will be gone in January

Don't hold your breath - all Dubya needs to do is raised the "terror alert level" on time and the panic will do the rest: Americans will start holding each other, waving flags, singing that "at least they know they are free", proclaim that "united they stand" and that some unknown entity is supposed to "let freedom ring" (whatever that means), and, of course, vote the moron back into office for another term. Besides, there are not two parties in the USA, but only two factions of the Business Party anyway (as Chomsky says).

I am embarrassed to be an american .

Don't. Your country is beautiful and has as much kind and smart people as any other. The world hates your regime, not your people. So be proud of your country and only ashamed of your political system!

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Re:its a joke

Posted by: Anonymous Coward on April 01, 2004 05:42 AM
Yep, that's the clearest explanation ever (no joke) of view on the america from outside.

I couldn't say it as clear, even if i'd try

Thx, and hope you won't be offended if I use your comment sometimes

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Re:its a joke

Posted by: Anonymous Coward on April 01, 2004 06:18 AM
you sure can use them as long as you make sure to credit "anomymous" for them<nobr> <wbr></nobr>;-)

seriously - this is not a "view from the outside" (although I am *from* the outside originally, I am writing this from the *inside* currently). There are PLENTY of Americans who perfectly understand all this. Read "Hegemony or Survival" by Chomsky or RMS's personal philo pages, or the writings of Malcolm X to see this for yourself (and there are plenty more out there - these three are only my personal favorites, but there are plenty more if you dig a little).

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change the name to MS-DOJ

Posted by: Anonymous Coward on March 31, 2004 11:03 PM
Way things are going in US is like the M$ mafia owns our MS-DOJ. This is a shame for us , why did DOJ breakup AT&T but not M$ just boggles my mind.

M$ is one of the worst abuser of its monopoly.

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Re:change the name to MS-DOJ

Posted by: Anonymous Coward on April 01, 2004 06:05 AM
Good question. One they have been repeatly ask and nevered answered. Wounder why?

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Am I the only one who remembers a sit down

Posted by: dog3 on March 31, 2004 11:36 PM
between Ballmer and Cheney behind closed doors
for a matter of weeks before the whole kitty got handed to Judge Coleen Kollar-Kotelly, who strangely
enough let MS pretty much set the terms in the settlement?

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that was supposed to read

Posted by: dog3 on March 31, 2004 11:38 PM
"behind closed doors for a few hours just weeks before"

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Worst thing for MS

Posted by: SarsSmarz on April 01, 2004 01:28 AM
Actually, becoming an official instrument of US foreign policy will be really bad for MS. Much like Coke in the 50's and GM in the 60's, and Haliburton now, this really hits growth and the stock price.

All other countries are going to double Linux efforts. Even old meek&mild Canada is going to put in tons of gov't money. There is no more growth for MS anymore. They will just have to milk the existing customer base, like selling them the right to upgrade in 3 years, and then not providing an upgrade.

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Re:Worst thing for MS

Posted by: MrWinston on April 01, 2004 02:14 AM
They will just have to milk the existing customer base, like selling them the right to upgrade in 3 years, and then not providing an upgrade.

Which is exactly what is happening right now with Licensing 6... Does anyone actually believe that Longhorn was pushed back to late 2005/2006 because MS was actually putting an extra effort into making a viable product? No, it's because all the Licensing 6 licenses will have expired, creating a paid upgrade (a la license renewal) instead of an obligatory one (under the current license). So, MS stands to lose BILLIONS if it doesn't push Longhorn back.

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No help from the DOJ

Posted by: Anonymous Coward on April 01, 2004 02:00 AM
The Department Of unJustice is doing what it always does. NOTHING

MS Will have to be punished by the hand of Linux and not Justice. There is no justice for MicroSoft. Nothing has changed.

We have to remove there fangs by 'stop paying them' and removing there endless money supply. The only way to cut them down to size and that means change and most people hate change.

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Re:Money (power) is what its *all* about

Posted by: Anonymous Coward on April 01, 2004 09:16 AM
I agree about cutting their *money* supply is starving them to death. How comes WinXP ask so much RAM and disk room? Such an OS *should* run perfectly smooth out of 500Mhz and 128MB RAM. If they had made it so, people (customers) wouldnt need to *buy more* hardware. That is bad for economy. This is the vicious-circle of capitalism made perfect...

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What else did you expect?

Posted by: Anonymous Coward on April 01, 2004 02:19 AM
What else did you expect from an administration which apparently feels that Privacy, Due Process, the Middle Class, and the Constitution are all threats to National Security?

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Re:What else did you expect?

Posted by: Anonymous Coward on April 01, 2004 04:00 AM
Actually I disagree. The current administration doesn't feel that Privacy, Due Process, the Middle Class and the Constitution are all threats to National Security.

These concepts are simply immaterial to the current administration's need to encourage the profits of the members of the favored group (without reference to the interests of the broad population).

There are *thousands* of American companies employing *hundreds of thousands*, or *millions* of people, all of whom are paying the price of inefficiency to fill the coffers of a few large companies (like microsoft and the American pharmaceutical companies) with the ears of the current wielders of power.

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The EU was right about microsoft and...

Posted by: Anonymous Coward on April 01, 2004 03:38 AM
The EU was right about Microsoft and they probably believe in punishing companies that operate in a criminal manor. That is why I divested in Microsoft stock and buy very little of their products now.
Any company that sues until they get their way overseas and in the US, produces more marketing material against a competitor, and pays for favorable reports is missing the obvious that their products are flawed and need redone before they put them on the shelf. If microsoft wants to play hardball they should pay the fines for doing so.

There is now the Sabranes Oxley act it will be interesting to see Microsofts EULA in a court of law over security breeches next, I also am telling you in the Linux community this law will force you to do better and secure programming too.

Just my 2ó worth

The ževenth žign

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The best DOJ B.G. can buy

Posted by: Don de Los Alamos on April 01, 2004 06:11 AM
Well at least two things now bvecome perfectly clear after watching the MS machine for a few decades. *It's apparent & quite obvious that Microsoft "spoon feeds" Corporat-ized FUD & false Information, disguising it as good ol' American truth, to our beloved, "entrusted" officials in the US/DOJ \et al.\

** Now I understand why (crystal clear!) the same DOJ hasn't so much as lifted a finger towards fia_SCOs outright Attack against the FOSS Gnu/Linux community. I am officially ashamed of what has become of the "Way of Life" some of us fought so hard to protect; and especially for my friends & fellow Marines that gave their lives to honor Freedom, Domocracy & the right to choice. Sickening.

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What else would you expect from a fascist George W

Posted by: Anonymous Coward on April 01, 2004 09:42 AM
No surprise here. Just another brick in the wall of the bush families new world order to push back time and goverment to an 18th century style aristocracy. Where corporate rich rule. Big surprize.
Outsource George Bush!

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r.i.p. U.S.: 1776 - 2004

Posted by: Anonymous Coward on April 01, 2004 10:13 AM
It was fun while it lasted, but the great experiment is over. Apathy allowed it to be sold.

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Re:r.i.p. U.S.: 1776 - 2004

Posted by: Anonymous Coward on April 02, 2004 12:26 AM
Just because the US institutions are presently ruled by people who possess the minds and spirits of spoilt teenagers does not mean that the American experiment is over. Far from it IMHO - and I am not even an American. The idea of America is a great thing. You should not give in to apathy. Vote early and vote often.

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*rant*

Posted by: wzzrd on April 01, 2004 02:47 PM
I had written the mother of all rants to put here, but my pshrink told me to just drop it. So I did. Just hope the members of the EC don't.

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astonishing really

Posted by: Anonymous Coward on April 01, 2004 03:18 PM
Since when do Justice departments have juridiction elsewhere than in their countries ? And since when do they have a say on international relations ?

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Here's a really scary thought...

Posted by: MrWinston on April 01, 2004 10:07 PM
Since the general opinion of this thread is that MS has the DOJ, US Legal System, and even Geo W. in its back pocket (and I'm not saying I disagree), it has also been recently learned that MS is, in fact, indirectly backing SCO (see BayStar's $50m cash infusion and ESR's leaked e-mail from SCO) in its lawsuit(s) against IBM and Linux in general.



Well then, suppose MS wields this power and manipulates the legal system to produce an SCO victory (we all know that in the US Government, enough $$$ in the right pockets gets the desired results - and no one has more of it than MS). Just food for thought - and at this point, I wouldn't put ANYTHING past MS.

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