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To: Harvey Allen who wrote (23461)	11/5/1999 9:22:00 PM
From: Harvey Allen	Respond to of 24154

Jackson ruling sends powerful message BY DAN GILLMOR Mercury News Technology Columnist The facts in the Microsoft antitrust trial always spoke for themselves. An army of expensive lawyers and spinmeisters could never alter those fundamental units of truth. And that is what comes through, with crystal clarity, in U.S. District Judge Thomas Penfield Jackson's ``findings of fact' in the case. In blunt language, he found what was plain as day. He found that Microsoft, contrary to its absurd and almost insulting claims, does hold a monopoly -- in the antitrust sense of the word -- in the operating systems market. He looked at the ample evidence and suggests that Microsoft used that monopoly to abuse both competitors and consumers. Microsoft has abused the language with equal fecklessness. Its persistent claim that it was simply defending its right to innovate has been a chimera from the start, and Jackson didn't buy the bull. He found a pattern of misconduct whose goal wasn't innovation but domination. ``Most harmful of all is the message that Microsoft's actions have conveyed to every enterprise with the potential to innovate in the computer industry,' he wrote. ``Microsoft has demonstrated that it will use its prodigious market power and immense profits to harm any firm that insists on pursuing initiatives that could intensify competition against one of Microsoft's core products.' This is powerful stuff. It's powerful not just because it gives an indication of how the judge will rule on the law some weeks or months from now, but because he's effectively foreclosing options for Microsoft and the company's intellectual allies in higher courts. Facts are facts, legally speaking, and it's almost impossible for appeals courts to tell judges they didn't see or hear what the judges say they saw and heard. The judge also addressed the question of harm to consumers, even though antitrust law is about harm to competition. But the appeals panel that overturned a previous Jackson decision in a related case used that standard, and the judge pointedly noted ongoing consumer harm from Microsoft's practices. Then he hammered home the point, saying the company's abuses have caused ``less direct but nevertheless serious and far-reaching consumer harm by distorting competition.' Jackson's language shows the extent to which he mistrusted what Microsoft's witnesses said in their testimony. He did tend to believe the government witnesses, and he definitely took seriously the best evidence: Microsoft's own internal e-mail and other company documents. Look for a blizzard of new speculation that Jackson's ruling will force Microsoft to negotiate a settlement. Almost every criminal defendant proclaims innocence, and people charged with crimes actually are not guilty often enough that the presumption of innocence remains a vital, if too often ignored, part of our justice system. But the evidence tends to rule, and majority of defendants eventually cop a plea and cut a deal. Will Microsoft? Doubtful. The company's lawyers, who've been mismanaging the case from Day One, now seem to be betting either on eventually overturning the case in a higher court or, more likely, stringing the case out long enough that any ultimate ruling will make no difference. Truly, in this kind of situation, justice delayed can be justice denied -- a pleasant prospect for a defendant that would be in real trouble if timely justice were applied. That's a pernicious but absolutely necessary part of the legal system, however. People who can delay judgments do thwart justice to some degree, but they deserve the protections from unjust prosecution that the appeals process provides. (Of course, in this context -- civil litigation -- justice is reserved for those who have the money to retain appeals lawyers.) In the shorter term, the trial has already had a useful effect. It has forced Microsoft to back away from some of its most outrageous abuses. PC manufacturers, for example, have been given more leeway in the way they set up their systems. The overall picture has changed since the case began, moreover. Network computing, which Microsoft long derided but is now adopting, could in theory make the Windows monopoly somewhat less overwhelming. And Microsoft has so thoroughly poisoned the well with its tactics that every move the company makes these days is viewed with suspicion. But it would have been pure poison for competition in the Digital Age had the judge accepted Microsoft's argument that a monopoly is impossible in an industry that changes quickly. Had he done so, he would have essentially gutted the antitrust laws applicability in the coming era. This was historic. Jackson was appointed by the most anti-antitrust president in recent memory. In the antitrust case that mattered the most, he sent a stern message. He said the law of the land does apply, even to the most powerful company on the planet. sjmercury.com