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MS Supreme victory leaves company guilty but unchecked

At least a further year of freedom to innovate, says crestfallen DoJ

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Microsoft today won - in the words of the Department of Justice - a further year's reprieve from the battery of remedies imposed by Judge Jackson earlier this year. The Supreme Court voted 8-1 in favour of the company's proposed course of action, that its appeal against Jackson's verdict should be dealt with by federal appeals court, rather than being expedited straight to the Supreme Court.

One, Justice Stephen Breyer, dissented, saying that the Supreme Court dealing with the matter immediately would "help create legal certainty." He at least agrees with the DoJ that Microsoft's preferred course will delay a conclusion substantially, and also clearly agrees with Judge Jackson. In his own rulings Judge Jackson tried very hard to follow existing Supreme Court case law, and went out of his way to point out how he was doing so, but he frankly admitted that the law as it stands has been outpaced by technology - so more Supreme Court precedents needed, soon.

Jackson also suspended the imposition of his wide-ranging remedies - including breakup, more transparent contracts, more open access to technical information and a general 'free the OEMs' policy - pending the outcome of Microsoft's appeal. Microsoft meanwhile has made it abundantly clear that it wants its appeal to proceed on the basis of what is in effect a re-opening of the whole trial. One's thoughts are drawn - with a certain glazed horror - to the company internal mantra that it doesn't get products right until 3.0.

That would suggest a slight improvement in Trial 2.0 in the appeals court, and ultimate vindication in the Supreme Court, Trial 3.0. If each of these takes another 2+ years - not that we're suggesting Microsoft is delaying - then it all should be over by 2005, by which time Bill Gates will have cashed all his shares, and Blackcomb will have shipped.

Seriously though, the courts aren't likely to countenance timescales of this order, and the Supremes in particular will surely baulk at the prospect of a week of Dean Schmalensee's reprised testimony. But the decision to go to the appeals court first is a major victory for Microsoft, and does hold the prospect, again in the DoJ's words, of irreperably harming competition.

Having lost so far, and therefore having nothing to lose, Microsoft has thrown caution to the winds, pulled the browser closer into the OS and to Microsoft-owned services, integrated some more with WinME (Media Player and Movie Maker), and will be hard-wiring browser home pages to MSN Real Soon Now. In its core markets it's in the driving seat even more than ever, and for the immediate future new models, say wireless and appliances, stand a far better chance of stopping it than any legal process. ®

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