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Is Microsoft.NET contempt of court?

Viewing it as such opens intriguing possibilities

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MS on Trial There is an intriguing possibilty in the Microsoft case that so far seems to have been overlooked - what if the Department of Justice viewed the Microsoft.NET announcement as a contempt of court, and asked the Supreme Court to act accordingly?

Microsoft very deliberately chose to announce a series of actions with its .NET plans that would have the effect of making it more difficult to separate the operating system and application companies if Judge Jackson's Final Judgement is upheld on appeal.

This is the third time that Microsoft has played this tying trick. The first was tying MS-DOS to Windows 3.x and locking out DR DOS, which resulted in Microsoft having to agree to a consent decree in July 1994. The second time was in October 1997 when the DoJ asked Judge Jackson to find Microsoft in contempt for breaching the consent decree by tying IE and Windows 95 (OEMs could not license Windows without IE, although other browsers were substitutable). Microsoft escaped that time because the wording of the consent decree was faulty, according to the Court of Appeals. Subsequently of course, Microsoft effectively and for technologically unnecessary reasons, welded IE to Windows 98.

The third example of tying will be between Windows and other major Microsoft products. The basic evidence is in the White Paper of the .NET announcement, where for example we are told that Windows.NET will be "tightly integrated" and that Office.NET will have a "single environment" (presumably welding together Word, Excel and Presentations). The details have not yet been spelt out fully, but there can be little doubt about the intention.

If the DoJ were to seize on this and press for a contempt finding, it is possible that the Supreme Court would take a dim view of what had clearly become a compellingly clear pattern of behaviour, which it is necessary to prove in an antitrust case. If so, the result could be that the appeal would be lost as early as October and the case sent back to Judge Jackson by the Supreme Court with instructions to implement the remedies forthwith.

It is an outside chance that this would happen, and much depends on the state of the relationship between the Court of Appeals for the DC Circuit and the Supreme Court. It is worth recalling that Judge Jackson has twice sought the advice and assistance of Lawrence Lessig, who in his time has been a Supreme Court law clerk and so would have considerable knowledge of the relationships, and may have offered some insight. The judge's move last week to stay all the remedies until the appeal is determined has been interpreted as being likely to keep the case with the Supremes, and speed up the case.

Certainly there could be nothing better for users, the industry, and Microsoft than a quick and final resolution. ®

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