Worth a read.
zdnet.com
Coop's Corner: MS makes the argument of its life
Microsoft finally makes the argument it needed to make.
By Charles Cooper, ZDNet News
June 15, 2000 5:13 AM PT
There were times -- more times than I can count -- during Microsoft's antitrust trial when the company's lead lawyer would hit the roof.
John Warden was too good a litigator to blow his stack in front of the judge, who would invariably rule against him on one point of order or another. But just one look at his expression and you could read his mind; it was a particular mix of incredulity and disdain. It's tough to describe this to someone who wasn't there for the show -- try imagining what you might expect if Porky Pig bit down on a spoiled lime.
Sound off here!!
Post your comment
on this story.
This was cognitive dissonance turned into high art: On the one hand, Microsoft's legal team showed the proper deference demanded by a court of law. And it would do nothing -- either inside or outside the courtroom -- to officially suggest that this judge was a dim bulb. On the other hand, the team had nothing but private contempt for Thomas Penfield Jackson, who it considered a gigantic, unfair blockhead, especially when it came to understanding the technology issues of this case.
Well, the judge has already thrown the book at Microsoft, and Microsoft has decided to throw all delicacy to the wind. In one of the more extraordinary documents to come out of this trial, Microsoft has served up a scathing 39-page indictment that raises substantial doubt about whether Jackson's decree will stick.
In one concise read, the company brings together strands of arguments that Microsoft made at various points over the last year, hammering away at both the procedure and the substance Jackson used to reach his conclusions of law and final remedy decree. And my take is that the software maker's lawyers are going to have a field day at the Hanging Judge's expense.
Among the highlights:
Microsoft's defense team whined ad infinitum about how the judge had moved the goal markers, allowing the government to raise new allegations that weren't included in the original case. The company has a point: This surely was not the original claim by Janet Reno that Microsoft attempted "to develop a chokehold" on the browser market.
This case was supposed to be all about how Microsoft shut down Netscape. But government prosecutors were able to throw in new charges related to Intel, Apple, IBM, Java and RealNetworks to paint a broader picture of a predatory monopolist. And the judge let them.
Jackson then double-crossed Microsoft after promising not to make a finding or issue a relief order on issues that weren't related to the original complaint.
Should Netscape have been allowed to enter newspaper and magazine articles that made for interesting reading but were hearsay all the same? MS entered tons of newspaper and magazine articles. But the burden of proof is on the plaintiff.
And what about poor Netscape? The government's economics witness, Franklin Fisher of MIT, allowed that Jim Barksdale had exaggerated his claim about Netscape's foreclosure from the OEM market. And Jackson himself noted that Netscape was able to distribute 160 million copies of its Navigator browser in 1998, the year the government sought to convince the court to issue a preliminary injunction to prevent Microsoft from illegally smothering Netscape. Considering how Netscape's installed base soared to 33 million in 1998 from 16 million in 1996, you have to wonder how effective Microsoft's goons were at carrying out their hit.
Jackson ignored previous judicial precedent concerning technological tying -- including a brief turned in by its hand-picked amicus curiae, Lawrence Lessig, that "Microsoft must prevail" -- when using tests established by other cases about product integration. (Remember that a few months before the Microsoft antitrust trial opened, the appellate court ruled that Windows 95 and IE 4 were parts of an integrated product as part of a previous consent decree because the company was able to prove "facially plausible benefits.")
And so on and so forth. I encourage you to read the document yourself and draw your own conclusions.
Here's the problem I have with the government's case: It never turned up the killer witness who would have convinced the world beyond a shadow of a doubt that Microsoft was guilty of acting like marauding huns.
Where's the smoking gun?
The best the trustbusters could come up with was the notorious June 1995 meeting between Microsoft and Netscape where Microsoft supposedly offered to carve up the browser market. I've spoken with Marc Andreessen, who swears his notes are accurate. Microsoft says that it's bunk. In the end, this boils down to a he-said, she-said argument. Again, interesting drama, but where's the smoking gun?
I know at least one executive who would have made a star witness, and he's got a whale of a story to tell.
Essentially, Microsoft pulled a Luca Brasi with this guy, offering him the "choice" of leaving either his signature on the dotted line or his brains.
The Justice Department tried but ultimately failed to find people like this executive -- sorry, no names -- to take the stand and testify against Microsoft. In the absence of an airtight witness who could recite chapter and verse, Microsoft is going to -- and should -- get off the hook.
Yes, Microsoft surely did look to torpedo Netscape. And it does play rough and ugly with its "partners," let alone its rivals. Joel Klein and Co. should have ferreted out the facts and nailed them -- with the facts.
|
