Getting Back in the Ring: Wonder What Happened to the Microsoft Trial? It's Here Again, in a Higher Court with Some New Players
It seems like a different era now, that distant time when the government's antitrust action against Microsoft was first filed in 1997. The dotcom era was dawning (now it's in a sullen cocktail hour), Bill Gates's riches were headed toward $100 billion (these days the poor guy scrapes by on less than $50 billion) and AOL wasn't yet in the business of making movies and selling Daffy Duck denim jackets. (It hadn't even bought Microsoft's browser rival Netscape.) Yet the case plods on, now headed toward its next milestone, the appeal of federal Judge Thomas Penfield Jackson's shocking order to chop the Redmond, Wash., software goliath into a pair of presumably less terrorizing mini-goliaths. For months now each side has been quietly filing petulant briefs. But this Monday and Tuesday, Gates & Co. climb back in the battle zone for public oral arguments before what they believe is a friendlier venue: the U.S. Court of Appeals for the D.C. circuit.
In some ways, the appeals process is indeed a reboot of a case that resulted in the legal equivalent of the Blue Screen of Death for Microsoft. Instead of a judge with obvious contempt for the Softies, there are seven jurists who won't be taking reporters into their chambers to hear fantasies of making Bill Gates write book reports about Napoleon. Instead of government hired-gun David Boies, whose adeptness at undressing witnesses makes Hugh Hefner look like a computer geek, there are two skilled but stolid career DOJ lawyers, Jeffrey Minear and David Frederick. And though the arguments and questioning will be unusually lengthy for this court (seven hours over two days, as compared with barely an hour for a recent antitrust case involving the Beech-Nut/Heinz baby-food merger), there are no scheduled screenings of the Clintonesque Bill Gates deposition, a credibility killer that dogged Microsoft for the entire original trial.
Still, context will prove crucial in this round of the case. After all, it's about reversing a standing decision, one that even Microsoft--which is racing along on its various next-generation Internet jihads--doesn't accept as a variable in its strategic plans. The burden is on Microsoft to prove that Judge Jackson erred in ruling that it was a bullying monopoly that violated several counts of antitrust law, including "tying" its Explorer Internet browser to its dominant Windows operating system. Failing that, it must prove that Jackson went overboard in adopting, with minimal discussion, the government's drastic remedy of a breakup.
That task might be a little easier because of conflict between Jackson and the appeals court itself. The D.C. circuit is known as a hot court, one with well-prepared judges who ask a lot of sharp questions. But one particularly hot moment in its recent history came in 1991, when it overturned the sentencing of former D.C. mayor Marion Barry because the trial judge recklessly criticized the jury in a public speech. The judge was Thomas Penfield Jackson--the same jurist who is copiously cited in Microsoft's briefs for remarks to the press allegedly showing his bias against Microsoft and its executives. …