Judge Scrutinizes Both Microsoft, Government in Final Court Meeting
A federal judge sharply questioned Microsoft Corp. and the government during their final courtroom meeting Tuesday--comparing Microsoft to the legendary Standard Oil monopoly and challenging government claims that the software giant illegally “tied” its Web browser to Windows.
U.S. District Judge Thomas Penfield Jackson voiced skepticism about Microsoft’s contention that its federal copyrights allow it absolute control over the way the company designs and distributes its software. Jackson also drew a parallel between the dominance of Microsoft’s Windows operating system--which runs more than 90% of all personal computers--and the 19th century oil monopoly held by John D. Rockefeller.
But the 63-year-old jurist also voiced reservations about parts of the government’s case during the final courtroom session of the landmark antitrust trial.
In a wood-paneled courtroom nearly twice the size of the second-floor facility where most of the antitrust trial was held, Jackson agonized over whether he could embrace the government’s view of the case without running afoul of a May 1998 federal appeals court ruling. That appellate decision overturned Jackson’s 1997 decision to give PC makers the option to offer consumers Microsoft’s Windows operating system without its Internet Explorer Web browser.
The appeals court said, “I can’t offset” any benefit of bundling “with a minus,” Jackson told lead government lawyer David Boies. The bundling arrangement need only offer “one plausible benefit.”
The Justice Department, 19 states and the District of Columbia have sought to portray Microsoft as a corporate bully that illegally used its nearly ubiquitous Windows computer software to dominate other technology markets such as Web browsers.
In a two-hour presentation in which he cited passage after passage from Jackson’s findings of facts to support that view, Boies said Microsoft tried to “threaten, bribe and coerce” other firms to refrain from distributing software that might threaten the dominance of Microsoft’s flagship Windows product.
Microsoft lead lawyer John Warden countered that the company’s business success--though aggressively pursued--has become “very important to the economy.” And he told Jackson that business casualties come with the territory.
“The antitrust laws are meant to foster competition,” Warden bellowed to the court, “even if it means some companies will be driven out of business.”
Experts say Jackson’s close questioning of both sides suggests the judge is far along in his final decision-making process.
That process began last year with Jackson issuing a scathing 207-page finding of facts generally accepting the government’s allegations and concluding that Microsoft is an abusive monopoly. Jackson issued those findings and delayed his final ruling until after Tuesday’s final arguments to encourage an out-of-court settlement.
Experts speculated that Jackson’s final ruling might not ultimately be as favorable to the government as his findings of fact issued in November.
The government has reportedly been pushing for significant structural sanctions against Microsoft, such as a breakup of the software giant. But any weakening of its case could hamper that effort. And Jackson seemed to have reservations about finding that Microsoft improperly bundled its Internet Explorer browser with Windows.
“I think he has some grave concerns about that. . . . That’s clearly the weakest part of the government’s case,” said William E. Kovacic, an antitrust expert who has followed the trial and is a professor of law at George Washington University.
But Robert H. Lande, a professor of law at the University of Baltimore, who attended the final arguments said Jackson appeared to be simply seeking a way to fortify any final decision against challenge on appeal in a case that could have far-reaching effects on the nation’s economy.
The conclusion of final arguments Tuesday may set off a race between negotiators seeking an out-of-court settlement to the dispute, and Judge Jackson, who is expected to issue a final ruling this spring.
Sources say settlement talks with a federal mediator in Chicago appointed by Jackson have yielded little progress so far. However, several observers said they never expected the talks to get serious until after final arguments, and Jackson has told both sides that he would delay any final ruling if it appeared they were close to reaching a settlement.
