Microsoft Decision

To prove a case of attempted monopolization, you have to prove all three points. The appellate court simply said that the plaintiffs did not prove the third point.

To oversimplify, the plaintiffs and district court were told that they did sloppy, incomplete legal work. That’s a recurring theme throughout this decision.

You get the feeling the plaintiffs essentially said, “We’re going to prove these guys are Pure Evil, so we don’t have to show how Pure Evil specifically worked. Since they are Pure Evil, whatever they did had to be bad.”

It is oddly reminiscent of the fatal error of Clinton impeachment. “Look at what he did; what more proof of Evil do you need?” The American people essentially said, wisely, “A lot more.”

Microsoft Might Still Be Broken Up, But Don’t Bet On It

The court did not say, “Microsoft will not be broken up.” What they said was, “We’ve made some changes in the rulings, so even if Judge Jackson were the Virgin Mary, a court would have to redetermine the punishment, anyway.”

When the district court gets the case back, they could still decide that breakup is the best thing to do. However, if they do, they’re going to have to do a lot better job justifying it and give Microsoft a fair chance to argue against that remedy in court.

The appellate court did give indications, though, that it’s going to take an awfully good argument to convince them that breaking up is the only thing to do.

While the court has a point in saying that the district court ruling of “These guys are Pure Evil, they must be broken up” isn’t too good,
some of their reasoning is a bit dubious, too. They seem too easily convinced that administrative difficulties in a break-up are an excellent reason not to break them up at all.

More seriously, removing attempted monopolization of a new market as a charge against Microsoft will make any attempted breakup very hard to justify. That means the DOJ and the state plaintiffs can’t come up with a better argument (which wouldn’t be too hard to do).

This is the critical point of the decision. Essentially, it says, “For this court case, you can’t consider MS’s Borg-like activities as a reason to split them up.”

“Judge Jackson, You Dumb Mofo”

Judges are usually very, very reluctant to personally criticize other judges. The appellate court did the legal equivalent of a screaming cursing tirade against Judge Jackson at the end of this decision.

However, they still would have done what they did even if Judge Jackson had conducted himself properly; send the case back to the District Court for redecision based on the appellate court’s ruling. All Judge Jackson’s behavior did was guarantee he wouldn’t get the case back.

What the appellate court essentially told Judge Jackson was, “Even if we agreed with every single word you said, clown, we would have had to send it back because you acted like an idiot.”

When I was reading through Judge Jackson’s comments to the media and authors and just about anybody else, I thought to myself, “If these were your conclusions, why are you telling everybody but the court that?”

So did the court:

“The problem here is not just what the District Judge said, but to whom he said it and when. His crude characterizations of Microsoft, his frequent
denigrations of Bill Gates . . . — all of these remarks . . . might not have [caused a problem] had he uttered them from the bench. . . . But then Microsoft
would have had an opportunity to ovject, perhaps even to persuade, and the Judge would have made a record for review on appeal.

“It is an altogether different matter when the statements are made outside the courtroom, in private meetings unknown to the parties, in anticipation that ultimately
the Judge’s remarks would be reported. Rather than mainfesting neutrality and impartiality, the reports . . . convey the impression of a judge posturing for posterity, trying to please the reporters. . . .

“Members of the public may reasonably question whether the District Judge’s desire for press coverage influenced his judgments, indeed whether a publicity-seeking
judge might consciously or subconsciously seek the publicity-maximizing outcome.”

That, folks, is a judicial reaming.

He wanted to be a star rather than a judge. He wanted to be famous. Well, he’ll be remembered, alright, just not the way he planned. There’s a lesson to be learned here.

What Next?

The court case will go back to a different judge in the district court. Microsoft will get punished for its actions. One good possibility for punishment will be Microsoft being ordered to allow IE to be uninstalled using the “Remove Programs” option in Windows, or maybe even making IE an optional install.

There will very likely be a fine. As indicated before, break-up is unlikely because the best grounds to justify break-up has been removed from the case.

So Did Microsoft “Get Away With It”?

Yes and no.

In the immediate sense, yes they did, but it’s crucial to understand exactly why. This is essentially a botched case by the prosecution. They didn’t prove, to a large degree, didn’t even try to prove, the points critical to justify something as extreme as a breakup.

You can’t just say, “Look at how Evil this guy is!” and win your case. You have to show, step by step, how and why Evil is bound to win.

In the long-term, no, they didn’t get away with it, because Microsoft’s current actions show that they have learned nothing from this. If you look at MS’s manuevers like those with Windows Media Player, you can see that Real Networks will be tomorrow’s Netscape.

So three or four or five years from now, we’ll be right back in the same boat: different case, different victim, same old Microsoft.

Email Ed