Let me try and rebut your points and show you why I think Microsoft doesn't stand a chance at the trial level.
NSCP and MSFT did not sign a single agreement to divide the market and even if they had, MSFT did not divide it, they took it. There are no laws against "attempted threat to divide a market", only laws against doing it.
You are confusing Sections 1 and 2 of the Sherman Act. Sherman 1 concerns itself with cartels, market division agreements, and other conspiracies in restraint of trade. Sherman 2, which is what the government is brining this case under, concerns monopolization, both attempted and actual.
The purpose of going into the Netscape meeting, I believe, is not to show that they divided the market, which Netscape obviously refused to do, but to show the motives behind an ongoing pattern of anticompetitive, predatory conduct, i.e., that later conduct was motivated by the desire to suppress competition to Windows from Netscape's browser. The meeting simply is intended to show that suppression of competition was Microsoft's intent, and other acts, such as IE integration, the contracts with AOL, et al., etc., are being offered to prove that Microsoft carried out the scheme.
Apple -- Its a fairly common practice with all software vendors to test their products with each new OS as they are developed. I don't see how Apple should be immune to this.
I have not read the transcript, so I'll limit my comments to Quicktime. Again, this is an attempt to show predatory intent. It will be a question of fact whether this incident has the fairly innocuous significance you attach to it or the more sinister spin the government claims.
The Intel argument is weakest. NSP was a hack created by INTC to show how QOS "could" be implemented on a PC where only Intel products were running. MSFT rejected the hack implementation, had no place for the concept in their own OS, and did not find it essential to their own marketing plans to create a new product line based on the concept, so I have little doubt they probably asked the rhetorical question to INTC: "if you want to screw up our OS, why should we spend so much energy supporting your hardware?" I don't see anything wrong with a question like that even if it does hurt McGeady's group.
Again, it's a question of fact, based on conflicting evidence, as to whether Microsoft was trying to suppress potential competition by using its monopoly power in the OS market or whether it was, as you say, simply trying to prevent degradation of the performance of Windows.
So, I think when you have a trial judge like Jackson, who from all appearances, gives Microsoft zero credibility, and you have a bunch of factual issues based on conflicting evidence subject to widely differing, nuanced interpretation which only a trier of fact is qualified to evaluate, you have the potential for a loss of major proportions, one Microsoft may be hard-pressed to get reversed on appeal, given how deferential appellate courts are when it comes to reviewing issues of fact.
Also, just from a practical point of view, this judge, who has already been reversed once, will do everything he can to make his findings of fact, or at least those findings that are adverse to Microsoft, bulletproof.
One countervailing consideration is that the Court of Appeals did rule on the Consent Decree that, if Microsoft could come up with a "plausible" technical justiifcation for its integration of Windows and IE, it would pass muster under the Decree.
Assuming, as Neukom does, that this same idea will be applied to any evaluation of Microsoft's technical decisionmaking directly under the antitrust laws, then all Microsoft has to do to win on appeal is to come up with "plausible" technical justifications for its allegedly anticompetitive product decisions.
On the surface, this seems pretty easy to do, and the rationales Microsoft gives for its conduct in each of the cases you discuss would certainly seem have an air of plausibility.
But, I would suggest that whether a technical justification for a particular product design or decision is "plausible" is an issue of fact, and that the trial judge's findings on the issue of plausibility, like all other issues of fact, may well be subject to the clearly erroneous standard. I'm not saying I know this will happen for sure, only that it may happen. However, I would submit that the trial judge's inquiry into Microsoft's justifications for its product decisions will be rather more searching than what the Court of Appeals did with the Consent Decree, and that, if the trial judge concludes that Microsoft's technical justifications are not plausible, or credible, the Court of Appeals could be in the position of having to uphold them if they are not clearly erroneous. Even if its a mixed question of law and fact, I would submit that the factual elements will predominate and could predetermine how the "law" part of the mixed question comes out.
Also, whether something is "anticompetitive," i.e., harms consumers, which was at the center of Microsoft's motion for summary judgment, is probably an issue of fact, or at least so tied up with issues of historical fact that a court of appeals would be hard-pressed to overturn a trial judge's finding that something Microsoft did was anticompetitive. It's going to involve not only the nuanced interpretation of historical fact, but also the sorting out of some very complex expert testimony from economists and others, all of which will rest on factual assumptions whose validity it will be up to the trial judge to decide.
This, in a nutshell, is why I think so much of Microsoft's legal strategy as we have seen to date is a flop and why I think they will lose this case in the trial court, and perhaps on appeal as well.
Obviously, if you or anyone else thinks I'm wrong, I welcome your criticisms and corrections of any misconceptions I may have. |
