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MS trial may resume next Monday

Apparently the judge is still trying to get rid of his drugs. Or something...

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MS on Trial Judge Jackson was not able to send his drugs case to the jury last week, so it will be next Monday at the earliest before the Microsoft case resumes. But there are now other problems about scheduling: David Boies, the DoJ's special trial counsel, is booked for another case starting on 7 June and which is anticipated to last two weeks, although it may be possible to postpone it. It is a year this week since Attorney General Joel Klein filed the current case against Microsoft. With six rebuttal witnesses to be heard, it is probable that the court will be in session for at least four weeks, since the court is not being presented with testimony, so there will be primary examination before cross-examination. Six to eight weeks are more likely, but this would then probably cut across holiday plans. Microsoft will play every card it has, as its chances of prevailing now look rather slim. Judge Jackson may decide to sit on Fridays, as he did previously when he was pushed for time. He has indicated that he would allow a month for each side to prepare closing arguments - and this was probably the time when he was expecting to sneak off for a holiday. It is clear that Microsoft will press the general line that the matters brought up by the DoJ are mostly moot. For its part, the DoJ should argue that this has no relevance: the case is about Microsoft having contravened section 2 of the Sherman Antitrust Act, and that if found guilty, Microsoft should expect to have to pay for its misdemeanours in a manner to be decided by the court, after a further round of pleading from both sides. The delay helps Microsoft in some respects - most observers will have only a hazy recollection as to the nature of the complaint. In addition Microsoft is consolidating its "integration" of IE into Windows. On the other hand, there has been plenty of opportunity for Microsoft to compromise with the DoJ, and there are no signs of this happening - and this tends to reflect badly on Microsoft. The most surprising non-development is that the DoJ has not announced formally any investigation of Microsoft's recent spending spree. It is clear enough to those in the industry that Microsoft is laying the foundation for trying to lever its way into new monopolies - for Windows CE and quite possibly for cable in some countries in the future. It is interesting that Article 86 of the Treaty of Rome, part of the foundation for European competition law (it concerns the abuse of a dominant position, which would include leverage from a dominant market into a non-dominant market) may be tougher than US law, in this case. If the EC officials are more or less given their heads, and Karel Van Miert or his successor decides to let the officials have their way, Microsoft could find itself being investigated in a far more unpleasant fashion. The prospect of simultaneous dawn raids on all Microsoft's offices in European Union countries, and the examination of all Microsoft's documents (and not just those it chooses to disclose) would drive fear into even the most stony-hearted miscreant. ®

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