States put on brave face in Microsoft ruling
By Paul Abrahams in San Francisco and Demetri Sevastopulo in Washington
Published: November 2 2002 0:56 | Last Updated: November 2 2002 0:56
In Washington on Friday, Tom Miller, the attorney-general for Iowa, and Richard Blumenthal, Connecticut's attorney-general, were trying to put on a brave face after Judge Colleen Kollar-Kotelly had announced her opinion on the appropriate remedy in the Microsoft antitrust trial.
"We can be very proud to have improved the settlement. The decision has taken the settlement to a higher and better level," said Mr Blumenthal. Mr Miller, standing next to him, was somewhat less enthusiastic. "We are not claiming complete victory but we don't think the other side can either," he commented.
In fact, there was no hiding the fact that the nine litigating states in the Microsoft antitrust case had suffered a colossal defeat. The "improvements" were small beer indeed. A few loopholes related to Microsoft's relations with computer manufacturers were closed; Microsoft is now prevented not only from retaliating against software and hardware companies but also from threatening retaliation; and a committee of experts to oversee the settlement will be replaced by a body made up of Microsoft board members.
None of the other proposals put forward by the states had been accepted. Not the proposal to force Microsoft to provide a stripped-down version of the Windows operating system; not their recommendation that programs such as Internet Explorer and Windows Media Player be removed from the operating system; nor the disclosure of the inner workings of Windows. That would lead to wholesale copying or cloning of Windows and would violate Microsoft's intellectual property rights, said Judge Kollar-Kotelly.
That was not much of a return for a five-year case and millions of dollars spent.
Not only did the states not get much that they wanted, but they and their lawyers were effectively rebuked by the judge for their conduct of the case. The purpose of the remedy, wrote Judge Kollar-Kotelly, was not to punish Microsoft's past behaviour but to pry open to competition a market that had been closed by the company's illegal behaviour. But the states had put forward proposals that failed to meet these criteria. They would require drastic alterations to Microsoft's products and aspects of its business model that had not been implicated in its illegal activity.
In many cases, she argued, the proposals were not supported by any economic analysis. And many of the proposals appeared to be motivated by rival companies, rather than creating an appropriate remedy. Some of the measures were irreparably flawed by poor definitions.
"In bringing these types of proposals before the court, plaintiffs again misunderstand the task presently before the court - to remedy Microsoft's antitrust violations," she wrote. It was a damning indictment of the states' proposals. Steven Kuney, the states' lead lawyer in the case, stood next to the attorneys-generals during the press conference but said little.
If the proposals were flawed, so too was the way the lawyers conducted the case. The key moment in the remedy hearings was when Bill Gates, Microsoft's chairman, took the stand. During the original trial, Mr Gates had given videotaped testimony. His performance had been disastrous.
But before Judge Kollar-Kotelly, Mr Gates produced a virtuoso performance. Mr Kuney, who cross-examined Mr Gates, attempted to pull apart his testimony. But Mr Gates, son a of lawyer and a formidable software engineer, quickly demonstrated that he had a greater understanding of the states' proposals than did Mr Kuney.
Microsoft's chairman in effect took control of the courtroom, telling Mr Kuney to look at certain sub-sections of each proposal. Mr Kuney's tactics were clearly not working, but he persisted for three days in the same vein, failing to find inconsistencies, and even more significantly failing to make the famously short-fused Mr Gates lose his temper. As Mr Kuney persisted, it was Judge Kollar-Kotelly who snapped. "This isn't a jury trial. I get it. I would move on."
Instead, the judge praised the Justice Department settlement. "Far from an amalgam of scattered rules and regulations pieced and patched together to restrict Microsoft's anti-competitive business conduct, the proposed final judgment adopts a clear and consistent philosophy such that the provisions form a tightly woven fabric," she wrote.
On Friday the attorneys-general said they were unsure whether they would appeal. But it was clear they were deflated by the decision and had little appetite to go on. Microsoft may not be able to claim complete victory but it was a compelling victory nonetheless. |
登录
