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Microsoft Seeks to Bar Media, Public from Depositions 34

Posted by timothy
from the why-indeed dept.
Richard Finney writes: "Yahoo/NewsFactor is reporting that Microsoft is moving to bar the media and the public from pre-trial witness interviews. Microsoft attorneys filed a motion with the U.S. District Court for the District of Columbia to overturn a previous order that allowed the media to hear and read depositions -- sworn oral testimony from potential witnesses. Witness interviews are normally secret and allowed to be viewed only by the parties involved. But a 1913 law ruled that the public has a right to see and hear depositions in antitrust cases brought by the federal government. I'm wondering, also, who's scheduled to testify? Why should this stuff be secret?"
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Microsoft Seeks to Bar Media, Public from Depositions

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  • "law ruled?" (Score:4, Insightful)

    by crow (16139) on Thursday January 10, 2002 @03:43PM (#2818436) Homepage Journal
    This is a technical nitpick, but laws don't rule. Courts rule. Laws state.

    But that's a direct quote from the original article. So the question is, is the 1913 thing a law or a judgement? If it's the latter, then it will be a lot easier for Microsoft to get its way.
  • by crow (16139) on Thursday January 10, 2002 @03:49PM (#2818487) Homepage Journal
    I remember covering logic in a class once, and we covered a standard list of fallacies. For example, Ad Hominem attacks are arguments against the person, not the idea. Is there a similar term for attacks against laws or court rulings based on their age? It seems that anytime someone tries to enforce a law that's more than 50 years old, the date is emphasized to imply that the law is dusty and obsolete.

    Next thing you know, you'll hear reporters saying, "the defendent claimed that he should be able to post any opinion he wanted, citing a 1782 amendment concerning free speech."
    • <a href="http://www.geocities.com/Athens/Olympus/7444 /logic.html">Look Here for fallacies (at the end)</a>

      Argumentum ad antiquitatem

      This is the fallacy of asserting that something is right or good simply because it's old, or because "that's the way it's always been."

      Argumentum ad novitatem

      This is the opposite of the Argumentum ad Antiquitatem; it's the fallacy of asserting that something is more correct simply because it is new, or newer than something else.
      • I'd be more interested in how to refute the "it sucks because it's old" argument, rather than a dry quotation of the definition of such.
        • The fact that it's a logical fallacy IS the refutation. If the age of something is the only things that's being considered, AND if age is irrelevant, then it's not logically correct to use age to argue that something sucks. If someone says that such and such a law sucks because it's old, you can ask them if they think that laws against rape and murder suck because they are old.
          • The fact that it's a logical fallacy IS the refutation. If the age of something is the only things that's being considered, AND if age is irrelevant, then it's not logically correct to use age to argue that something sucks
            The problem being that the theories of "evolution" and "marketplace of ideas" both imply that if something is old, and is still around and/or still in use, it has a high probability of being a better solution to the problem than the alternatives that have come and gone in between. Not a certainty, or even necessarily close to a 100% probability, but at least a higher probability.

            So the longevity of a solution to a problem is never irrelevant. Witness the 10 Commandments, the Bill of Rights, etc.

            sPh

            • There's always somebody who doesn't understand at all. The Bill of Rights is not a good thing because it's old. It's good because it's a liberal code of values. If the Bill of Rights was 5 minutes old, it would be equally as good. In other words, the goodness of the Bill of Rights is not at all related to how old it is. Furthermore, it's not proper to say that something old has lasted because it is good. Your other example, the ten commandments, has among other things, and implicit approval of slavery and classification of women as second class citizens. This clearly is not good at all, and there are newer codifications of law that do a MUCH better job than the ten commandments. The ten commandments is old, but not because it's the best idea that's available. It's old because it is old.
              • 10 commandments? (Score:2, Insightful)

                by sysiphus (90015)

                Your other example, the ten commandments, has among other things, and implicit approval of slavery and classification of women as second class citizens.

                Really? I don't remember seeing those in the 10 commandments. Let's check them again... (summarization mine)

                1. ...no other gods before me
                2. Don't take my name in vain
                3. Don't worship graven images (idols)
                4. Keep the sabbath holy
                5. Honor your father and mother
                6. Don't kill
                7. Don't commit adultery
                8. Don't steal
                9. Don't lie about your neighbour
                10. Don't covet his(her) stuff either.
                While I won't go in depth on any of this (and the twisting of these is easy to talk about,) I think that you will have a hard time finding slavery and gender inequality in there. I'd love to have an honest conversation about where that IS and is NOT found in the Bible, but that's offtopic here. Feel free to email me about it though.
                • OK, this is typical. Dishonesty is OK if you're trying to prove a point about your religion? You want to have a "honest conversation"? Your post shows that you don't have a clue what that is.

                  Your number 10 is conveniently worded to omit the terms "wife" and "manservant/maidservant" from the list of property that one should not covet. That 10th commandment implicitly says that wives are property, as well as slaves.

                  So don't tell me what's in the Bible. I think I know it better than you. For example, you'll probably deny that there's at least two references to drinking your own urine in there, as well as a threat from god to rub shit in your face unless you believe in him.

                  No thanks, I'm not about to kneel to a bully.
                  • by sysiphus (90015)

                    Figures. I try to politely respond to a troll, and forgot to wear asbestos. We'll try this from the begining.

                    Okay, here's the actual quote from Exodus 20:17 [gospelcom.net] (NIV)* "You shall not covet your neighbor's house. You shall not covet your neighbor's wife, or his manservant or maidservant, his ox or donkey, or anything that belongs to your neighbor."

                    According to your post, That 10th commandment implicitly says that wives are property, as well as slaves. That's backing down quite a bit from the original you posted: Your other example, the ten commandments, has among other things, and implicit approval of slavery and classification of women as second class citizens. Acknowledgement is not the same as approval. Commandment 10 is about coveting, and gives examples of what not to covet. In those days, slavery was normal, as was ownership of wives. Bad as that was (is where it's still acceptable,) it was an accepted social norm. The rule was thus written using examples that people would understand. Unfortunately, the bible always reflected the prevailing philosophies and mores of the day (except the stuff from Jesus on forgivenes, but I'm working on understanding that.) However, to extract a statement of approval from a statement of (current understanding of) reality only serves your own self-interests.

                    By the way, I am aware that other parts of the bible implicitly allow ownership of women and slaves. I am also aware of parts that implicity forbid it. I only know of one of the drinking urine passages; can you give me the references. I also know about the mistranslation of swearing on the king's "thigh" (it is better translated testicles), and that Ruth didn't lay at the king's "feet" (the word also means genitalia.) I know the dirty parts and contradictions in and out. Maybe you know the bible better than I, maybe not. Doesn't really matter, kind of like this conversation in the middle of this thread.

                    Oh, and since you seem sure I am trying to prove a point about my religion, could you let me know what my religion is? I haven't even started trying to figure out what it is, as I'm currently busy trying to find out what my faith is (if it is.) Don't mistake correcting (what I feel to be) a dishonesty for defending religion. I have none right now.

                    * NIV was the default translation at bible.gospelcom.net. I do not endorse it over any other translation (except King James, which is just terrible), nor do I neccessarily endorse the bible over any other religios source material. Pick any translation, they all say the same basic thing here.



                    • I am amazed at your tour de force of denial. How can somebody read the 10th commandment's list of property that one should not covet and not see the implicit sanction of slavery there? If the author of the bible did not approve, why weren't there 11 commandments? Anyway, kudos to you for knowing about one of the urine drinking passages. Theres quite a bit of duplication in the OT, and the other reference is nearly the same as the first. To find them both, do a search on the word "piss" in the KJV.
            • by Corgha (60478)
              The problem being that the theories of "evolution" and "marketplace of ideas" both imply that if something is old, and is still around and/or still in use, it has a high probability of being a better solution to the problem than the alternatives that have come and gone in between.


              Actually, I would disagree with you there, more with your choice of the word "old" than with the general thrust of your argument.

              It's not the age, per se, but the number of times something has been tested. Both evolution and the marketplace of ideas imply some sort of competition or stress that repeatedly tests the creature or idea in question. The more times or ways in which something has been tested, the greater certainty you can have that it is a creature or idea well-adapted to the problem at hand. Age provides more opportunities for such testing, but does not guarantee it. The "alternatives that have come and gone in between" are what provide it.

              Obligatory analogy: Let's say there are two Garden-of-Eden type islands (which, for the sake of this argument, magically suppress change to species that colonize them and which containin identical climate and plant life), the first of which is isolated and populated exclusively by an animal that has lived there and existed unchanged for 600 million years, the second of which is not so isolated and which many species have fought over, one of which has come to dominance in the past 10 million years. Now a third Garden island appears (magically) within colonization distance of the other two. Do you mean to tell me that evolution implies that the animal from the first island, by sheer virtue of its long-established pedigree, will be more successful because it is better-adapted to its environment?

              Back to the courts, I think it is reasonable to argue that a law from 1983 that has been repeatedly tested in the courts and has attached to it a long string of precedents should be given more weight than another law from 1903 that has never been tested in court. Such a situation is rare, of course, and usually old laws are also time-tested, and so it is natural for us to give them some respect in the absence of some other rational argument that might indicate the contrary.
              Not a certainty, or even necessarily close to a 100% probability, but at least a higher probability.


              So the longevity of a solution to a problem is never irrelevant.

              While it is fair to say that, all other things being equal, older laws have a higher probability of having been tested more times and thus a higher probability of being backed up by precedent, why confuse the issue? All other things aren't always equal -- antitrust cases are rare, and old laws or rulings that apply to them very likely will not have as many opportunities to be tested as newer rulings that apply to more common cases. Age provides an opportunity for precedent, but does not in itself establish it.
              Witness the 10 Commandments, the Bill of Rights, etc.

              The Ten Commandments and the Bill or Rights are respected by many not because of their age but because of their history, because of the relevance and instrinsic value that many see in what they have to say, and because of many other reasons including the profound respect that many feel for God and for the Founding Fathers. Do you think we should rank above them Hammurabi's Code just because it's older?
              • There's always somebody who doesn't understand at all.
                That's perhaps a bit harsh. I am not unware of, or unsympathetic to, PD and Corgha's arguments.

                However, there are a few points to consider:

                • As always, Slashdot is a discussion forum, not a venue for publishing master's theses or extensively fact-checked
                • New Yorker articles.

                  If we lived in a microeconomist's dream universe, where all human interaction could be universally measured in non-cultural, dimentionless units of U, where information was perfect, where transaction costs were zero, where there was no capital cost associated with the acquisition of knowledge, where all humans were in perfect communication and had perfect knowledge of everything that might affect their lives, and where all humans were fully qualified to make decisions on all those factors, well, yes, age might not be necessary as a proxy for quality. But we don't live in such a world, and I think the laws of physics prohibit it anyway, so we have to make due with heuristics and proxies for the "ultimate truth".

                  When I say "theory of evolution" in this thread, I mean the popular definition of 'winnowing out of the less fit over a long period of time due to lesser ability to handle environmental stresses'. A person with PhDs in Biology and Statistics could certainly argue, qualify, and pick that definition to pieces. And yes, if you have n perfectly isolated environments, you will get divergent and weird results. But I think the popular definition serves for the moment.

                  "Age alone doesn't..." - yes, I know. But tell me, why are such a high percentage of old houses also good houses? There are several factors, including the fact that building practices today are crap, but mainly because the bad, old houses have fallen down

                  "Multiple tests, not just age..." - again, perhaps. But it is also kind of hard to analyze something that doesn't happen, eh? If a rule in a pretty widely tested area of law stays unchallenged for 100 years, you also have to consider that perhaps the best lawyers of the last 100 years, in their (evolutionary) quest for the best defense, just decided to let that one lie?

                sPh

                • by Corgha (60478)
                  As always, Slashdot is a discussion forum, not a venue for publishing master's theses or extensively fact-checked New Yorker articles.

                  Ah, yes, the old "My argument may be flawed, but these people are being snooty and unfair for pointing out its flaws and presenting their cases too well." A discussion forum Slashdot may be, but this is a thread about logical fallacies, not about which color iMac looks best. DNS-AND-BIND and crow asked how one might best form an argument to refute the "it sucks because it's old" argument; well-formed arguments are entirely appropriate.
                  If we lived in a microeconomist's dream universe... [straw man]

                  Who is talking about these ideal humans? I'm talking about judges, who are the ones that actually make decisions regarding these things, and who are hopefully wise enough to know the difference between well-established precedents and mere age, and failing that, are usually good enough to listen to a well-formed argument by a lawyer rather than blindly making a decision based on age alone.
                  When I say "theory of evolution" in this thread, I mean the popular definition of 'winnowing out of the less fit over a long period of time due to lesser ability to handle environmental stresses'...

                  I think the definition is fine enough. In fact, it makes my point: that it is the stresses that do the winnowing, not the time. The point of my magical weird environments analogy was that a species that has been around longer has not necessarily overcome more obstacles, just as a law that has been on the books longer has not necessarily been tested more often.
                  But tell me, why are such a high percentage of old houses also good houses? There are several factors, including the fact that building practices today are crap, but mainly because the bad, old houses have fallen down

                  The flaw in that analogy is that laws are not made of wood, and are unaffected by water leakage and termites. Laws are not periodically inspected -- they stay on the books until someone goes through the effort to challenge them and get them taken off. We have lots of silly old laws about the length of kisses and such that are unlikely to be challenged because no sane DA would ever risk his or her career by trying to prosecute someone for violating them.
                  If a rule in a pretty widely tested area of law stays unchallenged for 100 years, you also have to consider that perhaps the best lawyers of the last 100 years, in their (evolutionary) quest for the best defense, just decided to let that one lie?

                  Let us say that legions of lawyers have considered the law and found it to be unassailable. Are those acts of consideration not tests in themselves? All those unchallenged uses of the law in court will form the very string of precedents that I'm talking about.

                  The distinction I am trying to make is between those old laws that are in "pretty widely-tested areas" of law and those old laws that are not.
    • The age can be an argument against a law.

      Laws are made with a certain social and technical background. Some of the assumed constants in the making of the law may have changed over the years and could have rendered the law obsolete.

      The more fundamental a law is, the less likely it will be. The first amendment is not a subject to such discussions, but the second amendment already is.

      Now take a look at the seventh amendment.

      In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved [...]

      Isn't there a slight difference between $20 now and then?

      What about the "Cabaret Laws" [nodancingallowed.com] in NYC, passed in 1926?

      There are several laws, which now seem ridiculous, because of changes in our society:
      In Halethrope, it is illegal to kiss for more than one second...

      In Tulsa, Rhode Island, kisses lasting more than three minutes are forbidden...

      What about same-sex marriages? Do you think future society will think the same about this as the current one?
      • The second amendment is subject to discussion because it is written in a way that allows two meanings.

        Regulated individuals are allowed to carry weapons if they are on call to the public to defend the free state in an emergency.

        or

        Individuals are allowed to carry weapons. (how people seem to treat it today)

        Amendment II

        A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.


        militia
        (m-lsh) n.
        An army composed of ordinary citizens rather than professional soldiers.
        A military force that is not part of a regular army and is subject to call for service in an emergency.
        The whole body of physically fit civilians eligible by law for military service.

        regulate
        (rgy-lt)
        tr.v. regulated, regulating, regulates
        To control or direct according to rule, principle, or law.
        To adjust to a particular specification or requirement: regulate temperature.
        To adjust (a mechanism) for accurate and proper functioning.
        To put or maintain in order: regulate one's eating habits.

        • Re: Second Amendment (Score:2, Informative)

          by Tuckdogg (550113)
          Actually, the second amendment isn't interpreted in either of the two ways you mentioned. The second one is close to the NRA's interpretation, although they typically use language that is quite broader (Something like, "Absolute right of individuals to keep/carry a gun free from any governmental interference.").

          The Supreme Court's interpretation, however, is quite different. Under the Court's view, the second amendment is not seen as granting (or "recognizing", however you want to look at it) any individual rights at all. Rather, it is seen as a check on the power of the federal government to control the states. As sovereign entities, they need to be able to maintain an armed militia to keep the federal government from being able to use the army to just roll over them (so the interpretation goes). Thus, Congress is unable to pass any laws that impinge upon the states' ability to maintain such a militia.

          Some might say that, under this view, Congress should not be allowed to pass any gun regulations at all because the second amendment leaves that power to the states. However, the Supreme Court basically says that these regulations are only unconstitutional if they significantly interfere with situations having a "reasonable relationship" to the preservation or efficiancy of a well armed militia. So, licensing schemes, banning certain types of guns from the public (i.e. assault rifles), etc., are okay because the states can still maintain an armed militia if they so desire. The weapons banned are not necessary for a militia, and typically police and National Guard forces are excluded from regulations of these kinds.

          You can agree or disagree with this interpretation, I don't really care. I'm just here to report. :)

          Tuck
          Tulane University Law School
    • What they're trying to do is conjure up in your mind all those goofy laws you've heard about -- you know, from those lists of laws that "are still on the books" even though nobody would think to enforce them now.

      So when you hear about the 1913 law banning secret interviews with government officials and anti-trust witnesses, you're supposed to think of that goofy 1913 law requiring that all horseless carriages must yield right-of way to donkey carts and have someone walking 100 yards in front to announce them.

      They certainly don't want you thinking about laws from 1913 that outlawed corporations handing cash to politicians in exchange for dropping anti-trust suits.
  • 1998 (Score:4, Informative)

    by hogsback (548721) on Thursday January 10, 2002 @03:52PM (#2818511) Homepage
    Something similar occured in 1998 [techlawjournal.com]. Based on precedent, shouldn't this new request be handled rather quickly?
  • Egg on the face... (Score:3, Interesting)

    by Catiline (186878) <akrumbach@gmail.com> on Thursday January 10, 2002 @04:03PM (#2818616) Homepage Journal
    Perhaps Microsoft just wants to avoid egg on their face. After all, when your CEO gets on the stand and (apparently) repeatedly perjures himself, you tend to lose a lot of customer trust. This is a fairly understandable motive to exclude the public.

    OTOH, this is just a natural extention of the 'security through obscurity' concept. Tells you what the real root thought is- to wit, the silencing of dissenting opinion (rather than to maintain so-called security). When the media won't be your lapdog, just muzzle them.
  • Embarrased (Score:2, Interesting)

    by ScumBiker (64143)
    I suspect that MS is embarrassed by the ongoing trial, along with all of the bad press lately. Maybe they think they can get back at the media by making it so they can't get to the court info. Frnkly, M$ could drop off of the face of the earth right now, and I couldn't be happier.
  • by Anonymous Coward on Friday January 11, 2002 @01:01AM (#2821662)
    Just thought I'd drop a few lines to clarify what's going on here, and to respond to the "1998" post earlier about this being an easy matter to clear up.

    First of all, the "1913" law in question here is 15 USC 30, which essentially says that when the gov't is suing someone over anti-trust violations, their depositions should be open to the public. In 1998, Judge Jackson (since removed from the case) granted the DOJ's motion to open up Micro$oft's depositions to the public pursuant to the law. This was appealed, and I would assume the appeals court upheld the law since the depositions are still planned to be open.

    In response to people's postings about it being outdated, the court of appeals disagrees with you. It might be old, but the reasons the law was passed in the first place are still valid. However, even if they weren't, the court could still not strike them down because the law is in violation of no Constitutional provision. At most, they could limit its application and say something like, "No TV cameras." However, the plain language of the statute does not limit the law in such a way. It simply says that the proceedings will be as open to the general public as are standard trials.

    As far as this serving as precedent, that isn't technically correct. The motion Micro$oft made is pursuant to Rule 26c (7) of the Federal Rules of Civil Procedure. Without boring you much more with the details, this rule simply says that a court has the power to limit access to proceedings (such as depositions) to preserve trade secrets and other business information that would normally be considered confidential. Micro$oft is now asking the court to do so. The earlier ruling does not actually apply here, as we are dealing with a different statute.

    So, essentially what's being asked of the court is something like this: "Legally, the depositions can be open. However, in light of our trade secrets that we need to protect, we ask that you limit who can see them and how much of what we say can leave the courtroom." Specifically, they would like for the MEDIA to be excluded. They are within their legal rights to make such a request, and the court has the authority to grant it.

    Of course, the court also has the authority to respond with, "FUCK YOU, BILLY BOY!", but that's neither here nor there.

    Tuck
    Tulane University Law School
    • Specifically, they would like for the MEDIA to be excluded.

      So? I bet there's a few people who read slashdot that aren't in the media that could do a lot more with MS' trade secrets than any newspaper reporter ever could. I'm specifically thinking of virus writers, crackers, and the russian mafia. That and the fact that Bill will be lying his ass off in deposition...

      "Netscape? Who's that?"

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