Word: microsoft
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...first glance, the higher courts seem considerably more sympathetic to Microsoft than was Judge Jackson. In 1998 the Court of Appeals dealt the Department of Justice a body blow by reversing Jackson's injunction ordering Microsoft to quit tying its Web browser to Windows. That decision has since been glorified by Microsoft attorneys, who see it as their salvation. But as Assistant Attorney General Joel Klein points out, "The court said it was writing without the benefit of a factual record." Now they've got 78 days' worth of testimony, much of it arguing that Microsoft's motivation was more...
Moreover, just because the pool of judges in the appeals court contains more Reagan-Bush appointees than Carter-Clinton appointees doesn't mean that it will automatically take Microsoft's side. Judge Robert Bork, a former conservative member of the court, is now retained by Microsoft's opponents. "I looked at the case and went with the other side," he says. So did one other prominent G.O.P.-appointed judge--Thomas Penfield Jackson...
Judicial Competence The harsh language of Judge Jackson's ruling makes no secret of his feelings toward Microsoft and its leaders--the text is sprinkled with words like untrustworthy and disingenuous. The feeling, Microsoft will make clear in its appeals, is mutual. "The judge simply got it wrong," says a senior Microsoft attorney. "He committed errors from the start of the proceeding and became more and more confused as time went on. He doesn't have special expertise in economics. He's a trial-court judge." Ouch...
There is some substance behind the catty language and what may be at least one serious miscalculation by Jackson: his decision to abruptly end the proceedings without allowing Microsoft to call witnesses (including Gates) to discuss the remedies. This kept the case from dragging on until the end of the year, but it also denied the company an opportunity to mount an important defense. "The refusal to entertain any further debate was a mistake," says George Washington University law professor William Kovacic. "What Jackson was basically saying is that nothing was going to change his mind...
...Since Microsoft can't enter new evidence on appeal, the company must argue that the government and the judge put the wrong spin on the stuff that's already in the record. This is familiar territory for Microsoft, which has long insisted that all those venomous e-mails and extracts from Gates' videotaped deposition were taken out of context. For example, Microsoft will claim that its brutal campaign against Netscape during the browser wars was ultimately benign, not anticompetitive; both sides issued rapid-fire improvements to their Web browsers, millions of programs were distributed for free, and the Internet revolution...