Breakup remedy was Microsoft's own fault, says trial judge

And he might be hinting that the government case will go pear-shaped...

By John Lettice, 29th September 2000

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Microsoft trial judge Thomas Penfield Jackson has blamed the company's intransigence for his imposition of structural remedies, including a split into two separate operations. At an antitrust conference in Washington yesterday he told reporters that breakup had not been his preferred remedy, but made it clear felt he'd been left with little choice.

By delivering his judgement in parts, and via clear indications during the trial, Jackson had attempted to point Microsoft in the direction of a negotiated settlement. Judge Richard Posner, who hosted the failed mediation talks, indicated that there had been serious progress made by the time he pulled the plugs, but complained about leaking and spinning. More recently he seemed to be pointing at the US states attorneys general as an excessive burden to antirust law in general, if not exactly to his mediation in particular.

Posner praised the professionalism of both the Microsoft and DoJ legals teams, but from what Jackson's saying now we can maybe deduce that professionalism and intransigence aren't necessarily mutually exclusive.

Perhaps more significantly - considering he's just had his preferred appeals procedure rejected by the Supreme Court - Jackson says: "Virtually everything I did may be vulnerable on appeal." In his conclusions Jackson did practically everything he could to minimise the areas where he would be vulnerable to appeal, so this could be a sign he's becoming pessimistic about the eventual outcome. ®

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