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Judge muses on Microsoft's motivation

Method acting approach makes it into trial proceedings

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MS on Trial No doubt attempting to enliven proceedings during one of those notoriously dull court sessions with economists, Judge Thomas Penfield Jackson yesterday suggested that Microsoft's intent in giving away Internet Explorer might be one of the points the case hinges on. This is not particularly good news for Microsoft, as the Department of Justice's exhibits file is stuffed with Microsoft emails which apparently suggest the intent was to destroy Netscape. "I can see for the court's purposes how intent might be relevant," he said. "A jury is called upon to do it all the time." Not having a jury to trouble him here, Judge Jackson is in a position to cut out the middle man. He made the observation during the questioning of Richard "No Database" Schmalensee, the Microsoft economist witness and sometime consultant whose role yesterday was to explain why giving Explorer away for free, and then building it into the OS, wasn't predatory really. Schmalensee had argued that Microsoft wasn't throwing away money by giving away the browser, as it could recoup its investment by selling advertising in Explorer, or by small price changes on Windows. The judge then made his point. If Microsoft had intended this when it made its move, that would be one thing, but if it had deliberately set out to trash Netscape, that would be quite another. But what about those price changes? Schmalensee said that increasing sales of Windows by 3 per cent, or putting up the price by $1.50 a copy, would net MS an extra $100 million. This of course took him perilously close to the subject of Microsoft as a monopoly again, because what opposition is there to stop either of these happening? ® Complete Register Trial coverage

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