Microsoft returns to trial revived and
rearmed
by James V. Grimaldi
Seattle Times Washington bureau
WASHINGTON - At long last, Microsoft's attorneys think their
case has some traction.
More than a year after the U.S. Department of Justice and 19
states filed a broad antitrust lawsuit, nearly eight months after the
case went to trial and three months after it rested a blunderbuss
defense, Microsoft returns to court armed with a passel of fresh
documents and a rehabilitated argument.
The crux of the new Microsoft defense is not an explanation of
what it did and why. Instead, its attorneys will turn the spotlight
this week on two other industry players.
The company's new argument is that America Online's acquisition
of Netscape Communications, along with a partnership with Sun
Microsystems, is a prime example of how the changing landscape
of the software industry makes the government's lawsuit moot.
Company attorneys are also accusing Justice Department lawyers
of keeping news of the deal secret for weeks last fall in the heat of
the trial.
With a break in the trial stretching to three months, Microsoft has
had time to make the most of the argument. But sure footing
doesn't always translate into a winning case, and it is far from
certain whether Microsoft can regain the momentum lost during
the trial, when the credibility of the company's witnesses was
damaged, the defense lacked focus and even some friends said
the case had been bungled.
Government lawyers also mock the new defense with a
fundamental question: What does this have to do with the central
allegation, that Microsoft broke the law when it used a monopoly
in personal-computer operating systems to outmuscle
competitors?
Despite the criticism, Microsoft's attorneys smile and refer
cryptically to documents they have retrieved from AOL,
Netscape and Sun.
Moreover, they're bolstering their bravado with a risky bet. For
its rebuttal case, Microsoft attorneys have called David Colburn,
an AOL executive, back to the stand as a hostile witness in an
attempt to cast doubt on his earlier testimony.
The risk, said Stan Liebowitz, a Microsoft ally and University of
Texas economist, is that the tactic will backfire. But if Microsoft
has the documents to destroy his credibility, then it might work.
"If nothing is there, and they can't prove it, they can look pretty
bad," Liebowitz said.
The strategy is clear: Hurt the credibility of the government and its
witnesses, showing the government combined with AOL and
Netscape to keep the merger under wraps.
"A theme in the government's case has been our witnesses are
believable and their witnesses are liars,"' said William Kovacic, a
law professor following the case. "I sense that what Microsoft is
trying to suggest here is that their (the government's) witnesses are
liars, too, that their witnesses shaded the truth to accomplish in the
courtroom more effectively what they couldn't accomplish in the
marketplace."
Microsoft's ultimate goal is murkier. Even if it successfully changes
the subject from the evidence presented at trial, it still leaves open
the question of its business practices.
In the end, Microsoft might even the score with the government
and create parity for settlement talks, which seem stalled. Many
industry participants are lobbying for far-reaching remedies,
including breaking up the company.
If Microsoft can win a few legal rounds, cutting a deal might
become easier for both sides.
The trial so far
Microsoft wasn't supposed to be losing this trial so bad |
