Hans Reiser his filed his own antitrust case against Microsoft. No
lawyer is helping him (he's appearing on his own behalf, that is, 'pro se').
Nor is he assisted by an antitrust economist. David v. Goliath? That's
putting it mildly. Microsoft's legal team read his complaint, allowed as
how they couldn't make anything out of it, and promptly filed a motion
asking the judge (northern district of California) to dismiss it on the
ground that, ASSUMING his 'facts' were all true, they still wouldn't add up
to a violation of the U.S. antitrust laws. (For his complaint and
Microsoft's answer, see http://www.idiom.com/~beverly/tying.html). Hans
was given a chance to reply (and amend his complaint to cure those alleged
defects), which he's tried to do.
Hans' complaint raises an important question: What about all the
damage Microsoft has inflicted on the smaller enterprises in the computer
industry? Are they to receive no compensation? Hans alleges, for
example--if I understand his complaint correctly--that (1) he's in the
business of creating and selling 'file systems' that are better than those
Microsoft has 'integrated' into its Windows OS and that (2) his business has
been damaged by Microsoft's 'tying' and other anti- competitive practices,
which is to say, his profit opportunities have been lessened by Microsoft's
monopolization of the various markets for software applications, including
the 'file systems' part.
Even, therefore, if the Justice Department should (by some miracle)
win its own case against Microsoft, there would be no restitution to Hans
and others like him for their past losses. To be made whole for their
injuries, they have to bring PRIVATE antitrust suits of their own--which are
often filed in the wake of successful government prosecutions. Hans has not
waited.
What are his chances of winning--or even getting to trial? In my
view, somewhere between zero and none. The judge will almost certainly
grant Microsoft's pending motion to dismiss his complaint--killing his case
without reaching even the initial discovery stage (depositions, etc), much
less getting a chance to actually go before a jury.
Why is Hans doomed here? First, for reasons I've emphasized
earlier, it would make no real difference if he (a) in fact had a splendid
case on the MERITS and (b) was represented by the best antitrust lawyer (and
the best economists) money can buy. U.S. judges, in these waning days of
1997, simply will NOT ALLOW an antitrust plaintiff to win.
But Hans' case has problems that go beyond this routine judicial
stone wall. An obviously gifted young man (his online resume says he
'entered UC Berkeley after completing the 8th grade'), the papers he has
filed in court bear little resemblance to those the judges expect--and
demand. They contain much that the judge (and his 3 or 4 law clerks, fresh
out of the leading law schools) will consider irrelevant. Worse, they
neglect several of the essential 'elements'--those treated as decisive by
our judges--of an antitrust case under current U.S. law. In addition, his
filings are full of the 'wrong' jargon--lots of computerese, none of the
'economese' our judiciary has adopted as the touchstone of its antitrust
'analysis.'
What could have Hans have done differently that (might) have boosted
his chances slightly here? For the benefit of those thousands of other
Hanses out there --those whose businesses have been hindered or hurt by the
Bill Gates monopoly-- here are some suggestions that occur to me:
1. Wait a little longer to see how the Justice case against
Microsoft is likely to end. (In theory, at least, it might develop
evidence--or even win a judgment--that could make a crucial difference in
your later private case.)
2. Master the 'dirty dozen' U.S. Supreme Court decisions. (They're
all online in my Web site at
http://webpages.metrolink.net/~cmueller/dirty.html). Until you've done
this, you don't know what you have to prove (and disprove).
3. Get a good antitrust lawyer who'll take your case entirely on a
contingent- fee basis.
4. Find a good antitrust economist who'll work on the same basis,
at least in putting the case together, assembling data and the like. (If
you put him on the stand as an expert witness, his 'credibility' will be
challenged if his pay hinges on your victory. See Antitrust Law & Economics
Review, Vol. 25, No. 4, pp. 1-12.)
5. Visit the antitrust office of your STATE attorney general and
ask for his help, either by way of filing a case of his own or at least
giving you the benefit of his staff's advice and guidance. (See 'State
Antitrust Practice and Statutes,' ABA.)
6. Forget your technical computer vocabulary when talking (or
writing) to lawyers, judges, economists, juries, editors, journalists,
lawmakers, and everyone else from other disciplines. It just creates 'fog'
as far as they're concerned. You'd better use some VERY clear English
indeed--if you seriously hope to win.
7. Organize or join a good 'class action' suit against
Microsoft--one where the claims of the other members are essentially the
same as your own, i.e., stem from the same type of anticompetitive
conduct--with enough fellow plaintiffs to raise the resources to mount a
genuinely effective legal-economic challenge.
Bravo to Hans for his courage. And yes, I realize I've previously
lamented the fact that the common sin here has been doing too little. I
also think it's clear, though, that there's such a thing as doing too
much--and too soon--with too little resources. Learning to be a competent
computer scientist, I suspect, requires a considerable number of years. And
it wouldn't surprise me if it takes almost as long to become a knowledgeable
antitrust lawyer or economist :).
Charles Mueller, Editor
ANTITRUST LAW & ECONOMICS REVIEW
http://webpages.metrolink.net/~cmueller
************
At 11:31 AM 12/28/97 -0500, you wrote:
>The URL was http://www.idiom.com/~beverly/tying.html. My apologies, I
>let the URL get mangled while using Netscape Navigator.
>
>Hans
>
>Scott K. McGrath wrote:
>
>> Mr. Reiser: I can't view this file? What format is a .vcf extension?
>>
>> Regards,
>>
>> Scott K. McGrath
>> [EMAIL PROTECTED]
>>
>> Hans Reiser wrote:
>>
>> > If you start at complaint with elaborated cause of action, and
>> then
>> > read onwards, you can get our various memoranda, etc. This
>> complaint
>> > seeks remedy for Microsoft's systemic use of interface tying, and I
>> > think you'll find our legal dialogue starting to get lively.
>> >
>> > I would like to welcome the members of the list to make commentary
>> on
>> > the legal strategies embodied in my response, on the points of law,
>> > and to otherwise assist me with your feedback. Please respond
>> > directly to my email address as well as to the list. I regret that
>> I
>> > was not able to post this in advance of filing to enlist your aid,
>> but
>> > your comments will probably help me with ideas to employ at the
>> > hearing.
>> >
>> > I will probably not respond to emails I receive from list members
>> > until after I get back from Russia on Jan 11th, but please share
>> your
>> > thoughts with me. It will take a lot of us ants if we are to get
>> this
>> > elephant. If you have depositions you can mail me, please do so.
>> >
>> > Hans
>> >
>> > PS
>> > Mr. Wall, you are welcome to send me a fancier HTML version for
>> > posting on my website if you want to.
>
>
>
>
