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Guilty: judge finds MS has monopoly power, and abuses it

Finds in favour of DoJ on virtually all points

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MS on Trial In a document issued last night Judge Thomas Penfield Jackson found Microsoft guilty of antitrust law violations, and held that the company unfairly and illegally wielded monopoly power. In unusually strong language, Judge Jackson's 200-plus page finding of facts came down in favour of the Department of Justice's case in virtually all areas. Redmond is still whistling optimistically, but it looks bad. Microsoft legal spinmeister Bill Neukom last night insisted the company still expected to be vindicated in the end, and the current line appears to be that it regards the ruling as merely one stage in a legal process in which it will ultimately triumph. The ruling looks like a massive defeat for Redmond from practically anybody else's viewpoint, of course, but Microsoft almost certainly wrote off its chances of winning this stage of the game a long time ago. But for the trial, Judge Jackson produced an innovation of his own - the split judgement approach he's using will make it very difficult for Microsoft to appeal successfully. His findings of fact, i.e., his take on what has and has not been established during the trial, can only be challenged at appeal if it can be shown that he was clearly in error, and this will be extremely difficult for Microsoft to establish. As it does so, all of the horrible incriminating emails he based his judgement on will come rolling out again. Death by a thousand "snippets," as Microsoft calls them. After yesterday's findings of fact ruling Jackson will next move towards a final verdict which includes remedies. He intends the period between these two mileposts to be used to concentrate the minds of the two parties and to maximise the chances of a negotiated settlement. Undoubtedly a remedies-fest will now break out, as commentators and lobbyists everywhere demand fines, break-up, licensing Windows source code and public flogging of MS execs outside branches of Circuit City, and that will no doubt help bring the still - apparently - intransigent Microsoft to the table. But the process has also helped bullet-proof his verdict; Microsoft is guilty, guilty as hell, and it'll have big trouble in getting that reversed. Specifically, Judge Jackson found that Microsoft is a monopoly; that it did try to carve-up the browser market with Netscape; that it harmed consumers by tying together the operating system and the browser; and that it bullied and threatened numerous companies, and cut special deals with others in order to stifle rival products, Netscape being them most obvious of these. In the view of the judge, "Microsoft enjoys so much power in the market for Intel-compatible PC operating systems that if it wished to exercise this power solely in terms of price, it could charge a price for Windows substantially above that which could be charged in a competitive market." The part of his verdict covering browser integration is particularly ominous, considering what's been happening in Caldera antitrust case against Microsoft (Click here for Caldera trail special report). The case included a long drawn out argument over whether IE had been integrated into Windows in order to benefit the consumer, whether it was actually an integral part of Windows or whether it was actually just arbitrarily tied into the product in order to eliminate rival browser manufacturers, and Jackson seems to have come down in favour of the latter. It's also important that he has concluded that this action harmed consumers, as this will be influential when it comes to remedies. Caldera meanwhile is trying to establish (with a great deal of inadvertent help from former MS exec Brad Silverberg, it appears) that Microsoft did precisely the same thing when it "integrated" Dos and Windows into a single "operating system," Windows 95 (Win95 - is it just Dos 7 plus Windows 4?). This would be what you'd call a 'pattern of anticompetitive behaviour. ® Complete Register Trial coverage

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