Appeals Outlook: A Reversal in One Act?

SAN FRANCISCO (06/08/2000) - Despite the rather brutal beating Microsoft Corp. has taken in U.S. District Judge Thomas Penfield Jackson's courtroom, and the remedy he has decided to impose, I expect the company to get a quick series of reversals as the case goes into appeal. Since I am writing this prior to Jackson's remedy finding, let's just assume that he has taken the most extreme option available, splitting the company into two or more pieces.

This plan, of course, would be held in abeyance during the appeals process, with Microsoft and the Justice Department still jousting over what other interim restrictions, if any, might be put on the company. The heavy-breathing gorilla hiding behind the vestibule curtains is the already-successful appeal and reversal of Jackson's finding that Microsoft's bundling of the browser and the operating system was illegal. Since that was the essence of the DOJ's case, the rest of the trial has become increasingly disconnected from original complaints and related law.

More important, at this stage, is what happens next. Imagine that the company loses all appeals and breaks up. Under the DOJ's proposal, the parts would be free to innovate and compete. Fifteen minutes after the breakup, Bill Gates, who I'm betting would take the operating systems group, either licenses or re-creates the Office suite - either from Microsoft or by buying/licensing Star Office from Sun or from someone else. All that matters is that the applications are backward-compatible with earlier files. Ten minutes after this, the applications group (headed by Steve Ballmer, my guess) gets a redistribution license for Windows and bundles it.

Thirty minutes into the breakup, all hell breaks loose, as the judge jumps in and tries to dictate exactly what will and will not be allowed to be incorporated into these products, contravening the DOJ proposal and his own findings. Is there any doubt this would happen? Not in my mind. And probably not in the minds of the appeals judges who have already ruled against Jackson, specifically saying that there is no role for government in product design.

People with too much time on their hands know that the fine print in Jackson's guilty verdict on the monopoly issue specifically addressed his willingness to proceed despite being overruled by the Court of Appeals, citing various cases and trends on the Supreme Court level. It kind of reminded me of kids on a playground, with the little kid calling in the town bully if anyone bigger dared to bother him. Pitting a hoped-for Supreme Court stance against a current appellate ruling against you strikes me as being a legal form of suicide. It's obviously impolitic because the case is most likely headed right back to the guys Jackson is now defying.

Which brings us to the last realpolitik legal point. Jackson's publicly stated interest in fast-tracking the case to the Supreme Court fits inelegantly with his finely reasoned arguments described above. That is, he does not want the case to play in a territory where he, as other past Microsoft judges, may be quickly humiliated. This area of law is vague at best. Despite Jackson's saccharine comments and presumed request, I expect the Supreme Court to take a much more sober view of the value of an orderly appellate process. I think that in line with Microsoft's own desires, the nine justices will turn down Jackson's request to skip that process.

All of which lands the case in front of a three-judge federal appeals court, all of whom are likely to be better informed on the technology industry than Jackson is. It is a safe bet that these august jurists will take about seven minutes to see through the steps laid out above, and get as far from being personally involved in the software-design process as is humanly possible - all in due process, of course.

Not long ago, I wrote about the troubling issue of an assumedly large number of senior jurists without personal exposure to technology fields over which they now preside. (This was certainly true in Jackson's court.) After writing a second piece in response to concerns raised by Bill Joy, chief scientist at Sun Microsystems, over self-replicating technologies, I received an e-mail from a state chief justice (not involved in this case) who is so personally concerned about this issue that he is starting a program with the specific goal of solving this problem. And not a moment too soon.

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