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Settlement not dead as DoJ mulls MS appeals

Jackson's rhetoric is powerful, but how solid?

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US District Judge Thomas Penfield Jackson's strongly-worded, even colourful, findings of law against Microsoft announced Monday were music to the ears of Department of Justice (DoJ) lawyers and states' attorneys general. Amid an atmosphere of restrained triumphalism down at DoJ headquarters Monday evening we learned that the judgment "will set the ground rules for enforcement in the Information Age," as US Assistant Attorney General Joel Klein put it. But will it? The findings of law may stand as little more than a historical document if a settlement should be reached between Microsoft and the DoJ during the remedy considerations of the coming months, or if the rulings should be overturned on appeal in the coming years. Microsoft was swift and eager to assert its intention to appeal the ruling, and many observers have taken the company at its word that it really wants its decade in court. But the announcement could be meant to leverage DoJ in the direction of a settlement. Asked about this during a Washington press conference Monday evening, Klein was less than forthcoming. "The Department is always willing to settle," he said simply, and changed the subject. The risk that the government faces here is "severe", according to Microsoft booster Boyden Gray of law firm Wilmer, Cutler & Pickering. "They may get absolutely nothing if the courts disagree with the judge here," he observed. The judge's finding, Gray says, is not that Microsoft misused its monopoly over Windows, but that it invested too much in the browser market in order to kill Netscape. "I don't think that will stand on appeal," he said. We're not quite sure we agree with Gray's reading entirely, but a settlement could still be a worthwhile avenue for the company. Microsoft wins if a settlement is reached, since that takes the biggest feather out of DoJ's cap after three years of struggle and a brief whiff of victory from Jackson's ruling. Failing a settlement, Microsoft also wins for as long as the appeals process goes on and the company gets to pursue business as usual. This could easily be a matter of years, considering the legal resources Redmond can afford to throw at the courts. For DoJ, not getting overturned on appeal is, well, not winning, exactly, but not losing as badly as it might. A settlement would be the lesser of two evils if Jackson were to be reversed. And DoJ can claim that Jackson's affirmation of their views brought the company to the table: an OK outcome for the Department, if not a slam dunk. No doubt the Department legal team will be burning the midnight oil as they pore over the Jackson decision looking for reversible error that could trip them up on appeal. Thus, if there is a settlement, we can bet that they found something. ®

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