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To: Flair who wrote (15283)	12/21/1997 11:29:00 PM
From: Gerald R. Lampton	Read Replies (1) \| Respond to of 24154

>Could you give your opinions about the following questions? Keeping in mind that I'm not very good at predicting the futire and that, in law, almost anything is possible, here goes: >(1). How do you think of Microsoft's appeal about the judge's >initial ruling? I think their appeal probably has merit. >When will we know the result? Your guess is as good as mine. >(2). What is the outcome of the lawsuit about >Microsoft's violating initial injunction? >If you think there are a few possiblities, could you >elaborate them? > >(3). What is the outcome of the original lawsuit? >If you think there are a few possiblities, could you >elaborate them? Actually, there is only one lawsuit, the one DOJ filed back in 1995 when they and Microsoft agreed to the initial Consent Decree. DOJ's recent filing was not a new lawsuit but a petition to enforce the Consent Decree by having the court hold Microsoft in contempt for violating it. The filing of Friday was a motion to enforce the court's preliminary injunction. What are the possible outcomes? It's anyone's guess but I think if the Court Of Appeals rules in Microsoft's favor, there may be a gap between when the present Preliminary Injunction is vacated and a new one, after proper notice and a hearing, is put in place. A more important issue is what happens to the Special Master. If the Special Master's appointment is voided, then Microsoft has a shot at winning this. If not, then it's anyone's guess what the outcome will be, but I don't think it will be favorable for Microsoft. I also do not like the way the Judge handled the "I uninstalled IE in 90 seconds" issue. The normal procedure in a contested hearing is for the fact finder to rely only on materials which are properly introduced into evidence. That way, the Rules of Evidence are allowed to operate properly to filter out materials, such as certain hearsay, which the law considers to be unrelaible or unfair. It gives the opponents of particular pieces of evidence the opportunity to test the reliability of the evidence through cross-examination, counter evidence and argument, thereby providng a second layer of safeguards as to its reliability. By holding his own little ex-parte demonstration, the judge has defeated all of these safeguards Indeed, even giving the parties a chance to argue the issue after the fact does not, in my view, cure the problem, since no one, other than he and court personnel, was present to observe the testing procedure and any flaws it might contain. So, now there are two instances of what I consider debatable behavior by the Judge: (1) the issuance of an injunction and appointment of a Special Master without notice and an opportunity to be heard, and (2) an ex parte test whose merits and meaning both sides are expected to argue but which, apparently, neither side was present to observe. With all respect to the court, I think these procedural lapses open up the judge to the charge that he is being sort of a judicial cowboy, out there on his own shooting from the hip in the name of truth and justice. But, in our legal system, even the black hats are entitled to due process. >(4). Impact of market share between Microsoft and Netscape? Guessing, I would say the impact on marketshare will be minimal either way. In terms of mindshare, a DOJ victory would be a definite positive for Netscape. Even so far, Netscape benefits from the fact that the media have made Microsoft look extremely bad. In Microsoft's defense, I suspect they are trying to avoid the situation IBM faced, in which the ongoing litigation severely hampered their competitive strategy. Every inidividual and business has the duty to obey the laws. However, consistent with that obligation, a company's first duty is to its shareholders and customers, not to the government. Their "middle finger extended" form of compliance with this court order may be their attempt to carry out this duty and avoid IBM's fate. And, if it turns out the preliminary injunction is void, it may turn out that this extremely risky gamble was, in the short run and from their perspective, the right thing to do. But the longer-term issue is what this means for Microsoft. Does Microsoft become like Big Tobacco, where it is universally (and not just in the software industry) reviled as the company wearing black hats and its every step is dogged by litigation? How long is Microsoft going to fight the feds before it finally figures out that this is a losing strategy?