Offhand, Jerry, I'd reply, why shouldn't the judge be pissed with Microsoft? They haven't exactly show much respect for the proceedings, in my jaundiced view.
Personally, though, I see it a little differently. Not that Jackson's not pissed, but I think he's a little tired of the whole thing too, and doesn't want to go through months more proceedings with Microsoft saying "Nyah, nyah, you'll be overturned on appeal" at every turn. Maybe, maybe not, but I get the feeling the judge figures there's not much point going along with the Bill the untitled chief legal architect's innovative strategy and dragging things out more, while in his official role as chief software architect Bill roles out his next plan to leverage the Windows monopoly even more. If the direct route to the Supreme Court goes through, the next time Bill's legal subordinates show up in court, they may be taking things a little more seriously.
Random old news, as usual just for amusement:
U.S. Assails Microsoft and Resubmits Proposal for a Breakup nytimes.com
The Justice Department brief asserts
that Microsoft has known for many
months that the government was
likely to request a breakup of the
company "and has had ample
opportunity" to express its concerns.
It says the company could have filed
the statements from Mr. Gates and the others along with its own
proposed remedy on May 10, letting the judge know that Mr. Gates
wanted to testify. Instead, Microsoft's lawyers waited until after the judge
had already declared that there would be no more hearings.
The government's evident suspicion from this is that the offer of proof
was not entirely genuine. But Mr. Murray reiterated today that Microsoft
had no idea that the trial would end on Wednesday. Company lawyers
brought along the offer of proof just out of a sense of due diligence -- for
the off-chance that the judge chose to close the record.
Had there been further hearings at which Mr. Gates had been called to
testify, the Justice Department could have subpoenaed additional e-mail
and other documents from him relating to the remedy question. Some of
his e-mails obtained earlier and shown during the trial undercut the
company's legal defense.
The government would also have been able to depose Mr. Gates and
cross-examine him on the stand. In his videotaped deposition in
preparation for the trial, in August 1998, Mr. Gates was halting and
forgetful as he slumped in his chair. His performance did not help the
company's case, and may have done damage.
The time to offer Mr. Gates's testimony, the government said, should
have been on May 10, the date the judge set for receiving Microsoft's
opinions on remedies.
Mr. Murray responded today: "That kind of attitude is completely
unfortunate and completely groundless when you look at the facts.
Microsoft lived up to its obligations in good faith, 100 percent."
Tee hee, a lecture on attitude from Mark Murray. All this "we're really nice guys" blather goes up against a rather lengthy historical record. The Register knows attitude, of course:
NexGen Windows - has the trial derailed it for keeps? theregister.co.uk
So at the moment Microsoft seems to have two possible avenues. It could scream and
scream, threaten to cancel NGWS, and insist that this is an example of how government
interference is destroying innovation, the IT business, the US economy and customer
choice (insert more guff about NASA and 747 here). Regrettably, we suspect the
tantrum-prone High Command will incline to this route.
Or it could spend the next three weeks on a rapid revision of its slideware, working up
something that could at minimum be viewed as a contingency plan to build NGWS within a
separated apps division. This probably isn't as hard as it might look on the surface. We've
noted strange noises suggesting that the first components of NGWS are intended to be out
by the end of this year, which really means - as we've been quietly suspecting for a couple
of months - that the basics of these components already exist. NGWS is not a new
Windows operating systems, it is a set of client and server based services, many of which
Microsoft is already shipping in one form or another.
At best it's a middleware project that could still quite easily fly if the base OS moved
towards the status of essential service with equal availability to other companies, and
Microsoft could build it just like those other companies (e.g. HP, IBM, CA) already do. At
worst it's just a marketing concept intended to bundle and brand another big pile of
Microsoft stuff. But in that case it's tricky to figure out why it should cost as much as the
moon programme - that's one hell of a TV advertising budget. ©
But more directly, picking up where the NYT article leaves off:
DoJ sticks to its guns, MS sentence looms theregister.co.uk
There is an accompanying Memorandum by the DoJ that is as vitriolic as legal documents
get. Its thesis is that "Microsoft has not engaged responsibly" in following the rules set out
by the court. The DoJ is particularly critical of the "Order of Proof" that Microsoft produced
at "the eleventh hour", since only after the Court said that it was "not contemplating any
further process (hearings)" did Microsoft produce what it had prepared but "kept secreted in
its briefcases" - a 35-page document offering testimony from 16 different witnesses.
Nobody seemed to see that the joke was that's why they're called brief cases.
Some might call this foresight on Microsoft's part, but to the DoJ it was evidence of bad
faith, since "Microsoft was not genuinely surprised about what was expected of it" and "was
perfectly capable of being forthright with the Court but chose not to do so".
It does appear that Microsoft may have given up trying in Judge Jackson's court, hoping for
a better result on appeal. It clearly made a serious legal error in not seeking any depositions
or discovery after the DoJ filed its original Proposed Final Judgement, and most seriously of
all, not addressing the process issue at all. Microsoft had the right to depose the declarants
that the DoJ had used, but did not choose to do so. The hawks amongst Microsoft's
lawyers may live to regret that they had not been doves.
The DoJ said: "A party that was genuinely interested in having discovery or further
proceedings would not have behaved that way. It would have made timely and specific
requests for more process; it would have attempted to show good cause for a continuance;
and, if it had evidence or even a bona fide offer of proof, it would have submitted it when
process issues were discussed. It would not have waited until the conclusion of the
hearing." ©
Oops, that's all a bit long. Oh well, I've gotten worn down by the whole thing too.
Cheers, Dan. |
