Microsoft Trial Enters Closing Arguments

With no predictable resolution in sight, the Microsoft antitrust trial is scheduled to hear closing arguments in Washington, D.C. today.

Meanwhile, in Chicago, Illinois, private settlement deliberations continue, although people close to both sides indicate that a settlement is not imminent.

Recently, trial judge Thomas Penfield Jackson hinted that he might delay closing arguments if both parties seemed poised to settle the case. However, an itinerary for the closing proceedings was issued late last week, signaling that the court now does not expect a settlement to take place.

Judge Richard A. Posner of the 7th Court of Appeals, who is mediating the settlement talks, has heartily encouraged the parties to settle, indicating that he would publicly support the decision and testify before the U.S. Congress if necessary. The Congress would have time during a 60-day grace period to hold public hearings.

U.S. District Judge Thomas Penfield Jackson, who declared on November 5, 1999 that Microsoft used monopoly power to harm consumers, competitors and other companies, has also publicly stated that he would fully support a settlement between the software company and the government.

Jackson’s declaration in November was a finding of fact that stopped short of drawing legal conclusions. Today’s oral arguments are aimed at helping him determine how the law applies to his findings of fact.

The Shape of Things to Come

Both sides in this case have much to lose. If the court rules against Microsoft, the company will immediately be open to a host of antitrust lawsuits, which could keep the company embroiled in antitrust actions for years to come.

Also, the possible election of a Republican president in November could usher in an administration with a different view on antitrust matters than the current administration.

Even though the stakes are high for both sides, no one on either side has indicated that the parties have found common ground or an acceptable method to compromise.

Microsoft Stands Firm

Microsoft continues to deny the charge that it deliberately tied two products together — its Windows operating system and Internet Explorer Web browser — to stifle competition. The competitive battle between Microsoft and Netscape Communications raged throughout much of the last decade.

Through it all, Microsoft has been resolute in its determination to prove that it has every right to market its software as it sees fit. Jackson is moving cautiously to avoid conflicting with a 1998 appeals court decision which agreed that Microsoft could design its software the way it chose to, based on a 1995 agreement with the government.

However, Lawrence Lessig, a Harvard law professor with whom Jackson has conferred, told Jackson that the appellate court did not consider any violation of antitrust laws, and Jackson has a right to do so.

The Gates Factor

All eyes are currently on Microsoft Chairman Bill Gates, who is now rumored to be considering a settlement.

Bloomberg News reported that when Gates was asked moments after a television interview if he would be willing to disclose the secret blueprints for the company’s Windows software, he answered, “Yes, if that’s all it took.”

The company has since publicly backpedaled, denying that Gates ever made that statement.

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