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Judge Jackson tames the Beast

How about a three-piece Microsoft?

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MS on Trial It was an interesting day in court. Judge Thomas Penfield Jackson started things off by refusing to hear Microsoft arguments to dismiss the government's case, but headed swiftly into a surprising discussion of the merits of breaking the company into three divisions rather than two as proposed by the US Department of Justice (DoJ).

"I intend to proceed to the merits of the remedy," he said in reply to Microsoft lawyer John Warden's assertion that the festivities should be confined to hearing a motion to dismiss the government's proposal, and to setting a schedule for further proceedings.

And then he said some very funny things. "The effect of a bisection will in effect create two separate monopolies," Jackson observed. The judge wondered if perhaps we would all be better off with the company's browser and ISP business standing on its own legs too.

Jackson had been doing his reading, and praised as "excellent" a brief of amici curiae, humbly and no doubt selflessly submitted by the Computer and Communications Industry Association and Software and Information Industry Association, in which the tripartite Beast is envisaged.

Trisection was "something we very seriously considered," DoJ lawyer David Boies allowed. But it would be too complicated and time-consuming to accomplish, he reckoned. "We thought that the two-part divestiture would be simpler to implement," he said.

"[Your current proposal] is anything but simple to implement," the judge retorted. "[Microsoft] will not be a willing participant."

Clearly Jackson is leaning towards ordering a break-up and reckons that if it's going to be a nightmare whether in two or three parts, the government might as well get as much as bang for the buck as possible.

Microsoft's Warden begged to differ. "There is absolutely no precedent for what has been proposed here," he whinged.

The DoJ and the states countered that Microsoft's alternative remedies are toothless. The company's proposals are "full of trap doors and escape hatches," attorney Kevin O'Connor warned.

After an hour's recess, Jackson returned to the bench and thrilled the audience by ordering the DoJ to submit a revised proposal including the mechanics of a three-part break-up, and to have it in by Friday. Microsoft will be given only 48 hours to submit a response, Jackson added.

As for "further proceedings", Jackson will have none. He wants the DoJ proposal, the Microsoft reply, and then he will rule.

That's any time after next Tuesday, when Microsoft's answer will be due. The man is not fooling around. ®

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