To All: MUST READING for All Softees! Here is a side of the legal equation you will not hear from the likes of King Tutt and the liberal media:
Wed, Nov 17, 1999
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Microsoft, Legal Gamesmanship, and Conflicted Antitrust Law
Dateline: 11/09/99
On Friday Judge Thomas Penfield Jackson issued his "findings of fact" in the antitrust trial of U.S. v. Microsoft. The common reaction in the press is that Microsoft is getting slammed, although we also see acknowledgement of Microsoft's history of being able to improve its position on appeal.
Background articles:
D-Day for Microsoft
Guide Steven Gindin on the end of the world as we know it.
The Bad News about the Microsoft Ruling
Guide Ed Martin's doubts on the wisdom of the case against Microsoft.
Microsoft, Antitrust, and Owning Access to Cyberspace
Yours truly with some timeless views.
Judge Jackson's findings leave little room for doubt but that he must have nearly completely accepted the government's factual recitation of the case. Frankly, however, I see this as the presentment of Microsoft's darkest hour, meaning that its fortunes can only go up from here.
The Meaning of the Findings
The first thing I noted about the findings are that they read more like history book than a set of concise factual findings. It is indeed a fascinating read, but one wonders just who it is he is writing for, after all. Well, there are three possibilities, not necessarily in order of importance: (1) for the appellate courts, (2) for the public, and (3) for Microsoft. Let's look at those things.
Generally, findings of fact are written to record certain data for appellate review. Findings of Fact are separated from Conclusions of Law, in part because the standard of review for the two are different. (Usually, they are both completed in the same document at the same time, culminating in a final order or decree, but in this case Judge Jackson has announced that he will take briefing and perhaps argument on appropriate conclusions of law to be drawn from his findings, first.)
Appellate courts give trial courts great deference in their findings of fact. After all, it was the trial court who actually heard and saw the witnesses, weighed credibility, and labored through the trial in person and in real time. Appellate courts routinely announce that as long as findings are supported by "substantial evidence" (meaning anything halfway believable), they must be assumed to be true by the appellate court.
Conclusions of law, however, are completely fair game; the appellate court will analyze legal conclusions from scratch.
Therefore, every trial court knows that his orders will be more likely upheld if his findings of fact are solid, complete, and unambiguous. In this case, that means 207 pages of narrative, but it also means that Judge Jackson is hedging somewhat in two ways. First, he is not really telling us what the disputed facts were, and how he resolved them. He makes it look like there was only one version of the facts. Second, some of the "facts" are really conclusions of law in disguise, or at least mixed questions of law and fact, which the appellate court should treat as reviewable even though slipped into the trial court's "findings." For example, the statement that Microsoft is a monopoly is, at least in this case, a legal conclusion (it is not a literal monopoly - there are other makers of operating systems - but perhaps should be considered a monopoly-in-law if you will, for purposes of antitrust law).
By writing his findings as a historical narrative, I believe he leaves the door open for an appellate court to either think he might have been biased, or otherwise failed to acknowledge important conflicting facts in the overall record. This is going to be troublesome for an appellate court. While giving lip service to the trial court's findings, it may nevertheless be more likely to tinker with the severity of sanctions that will eventually be imposed, for example. The same is true when something is stated as a fact when in reality the appellate court will see it as a legal conclusion in disguise. It will feel more free to go in and reassess that conclusion from scratch.
No doubt Judge Jackson knows all of this. At times in the past, he himself has given the market more credit for its own regulation or resiliency than is apparent in these "findings." That is why I think he was really writing for the public, for the historical record, for posterity. He also may be writing to affect settlement negotiations, rattling his saber in effect, in hopes that it will cause Microsoft to step back and give up a few things voluntarily in order to repair its public image. In spite of the sophistication of all the players, he knows that the end result in this case is dependent upon public opinion and the political winds.
Will it work? I doubt it. Microsoft has too much to gain by taking this case into the arena of pure law and policy, and perhaps it has too many friends in the public as well.
The Conflict in Antitrust Law and Policy
I'm no expert in antitrust law as such, but it doesn't take a brain surgeon to recognize the depth of the disputes in political and academic circles concerning the use of antitrust law in the modern economy, particularly as it might apply to the fast-moving world of high tech. Add to that the inherent ambiguity of antitrust law - there are no clear definitions for such key concepts as "monopoly," "?restraint of trade,? ?unfair trade practices," and the like:
Questions such as what is ?unfair? competition, an ?unreasonable? trade restraint or a ?monopoly? are unanswered in antitrust ? indeed they are unanswerable. As Alan Greenspan wrote, antitrust ?is a world in which the law is so vague that business-men have no way of knowing whether specific actions will be declared illegal until they hear the judge?s verdict ? after the fact.?
- Robert S. Getman, Antitrust: A Government of Men, Not of Laws
An appellate court, possibly the U.S. Supreme Court, will be the one to truly make its mark on history by addressing the truly mixed questions of fact and law in this case. Bill Gates knows that he has time on his side, the resources to play it out, and perhaps even an anti-government sentiment on his side.
I predict that ultimately Microsoft will have to provide a browser-free version of Windows, enough open code to allow the development of a competing flavor of Windows or open standards for network applications, and will pay some damages to some companies for some instances of heavy-handed tactics. If the result comes from the courts, however, it won't appear as thoroughly anti-Microsoft as do Judge Jackson's findings alone.
What are your predictions on the outcome of this case? Please add your thoughts to this topic discussion on our forum (reinvigorating a discussion from several months ago)!
Best,
-Paul Reed
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