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The trial this week: DoJ consultant in the frame

With just two days work before Thanksgiving, it looks like W-B will be a busy boy in the box

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Microsoft has made it clear that it intends to spend several days cross-examining Dr Frederick Warren-Boulton, the consultant economist who testified for a day last week. Microsoft spokesman Larry West admitted that the monopoly issue was a key, substantive one in the case, which until now had dealt with finger-pointing matters. Since this week includes the Thanksgiving holiday, the court will be sitting for only two days, and James Gosling, the Java pioneer, is unlikely to be called this week. Microsoft is likely to attack the market definition that W-B used when he gave as his view that Microsoft has a monopoly. This is standard practice in an unfair competition case: the defendant tries to develop a market definition that can help it show that it did not compete unfairly in that market. This will be difficult for Microsoft because it has produced an abundance of bragging statements that show it dominant according to the market definition W-B is using. Microsoft will try to develop a broader market definition than just Intel, and include all operating systems. Confounding the general rule that Republicans do not believe in breaking up monopolies, a group of soi disant conservatives wrote to Richard Amey, the House majority leader, to say that complaints in Congress to the effect that the government's prosecution intrudes in an unregulated market should be ignored. Former chairman of the Federal Trade Commission Dan Oliver, who organised the letter, said that if the Microsoft case could not be supported by Congress, no antitrust case could be supported, and that breaking up Microsoft (or some other structural remedy) could be effective. Oliver, who is also legal advisor to ProComp, an anti-Microsoft industry body, was supported by James Miller, also a previous FTC chairman, and James Rill, who was head of the DoJ antitrust division under Bush. Microsoft has had a much-strengthened team of lobbyists working away to gain support in Congress, but sentiment is not swinging to Microsoft at present. The restaurants of Washington are the only real winners so far. Meanwhile, the original three issues in the Complaint have almost been forgotten: tying Windows and IE (the court of appeals supported Microsoft in June on this ); ISP contracts (Microsoft says it has voluntarily relaxed these); and first-screen requirements (which remain a problem for Microsoft as its defence - a consistent user experience - is weak). Legal argument about the DoJ's move away from these central issues, and Judge Jackson's latitude in allowing it, can confidently be expected from Microsoft. ® Complete Register trial coverage

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