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Microsoft epiphany in antitrust case

Shocker: they'll argue the facts after all

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Oral arguments in the Microsoft antitrust appeal, scheduled for 26 and 27 February, will differ radically from the briefs which the company has already filed with the court. MS intends to shift its appeal from the current strategy of whingeing mournfully and publicly about Judge Thomas Penfield Jackson's lack of admiration for Gates and Co. to the actual the facts of the case, the company claims.

This is either the most fortunate last-minute epiphany in the history of business litigation, or something clever which the company planned all along.

We like the second hypothesis for several reasons.

It was always inconceivable that MS should base its entire appeal on what amounts to a bit of icing on the cake. Surely, after establishing actual errors of law in Judge Jackson's courtroom, the company could explain them, finally, by concluding that his obstinate misunderstanding of Redmond's enlightened culture disposed him to make them.

Indeed, it would be extremely difficult to argue from the postulate that Jackson is biased to the particular 'errors' which his disposition, presumably, would create. It makes enormously more sense to establish the particular errors (if there are any) first, and then wrap them up with a little flourish at the end citing irrational prejudice as the only explanation of how such an intelligent and experienced judge could have made them in the first place.

We think the company had that figured all along, but chose to give out false scent -- the appearance of concentrating on Jackson -- for several reasons.

First, they get free PR spin from the press, which has been digesting the MS briefs and amplifying the company's victim message. 'Microsoft got a raw deal from a mean, vindictive judge'. We know Redmond loves to influence public opinion, as they did during the trial with a sappy, and quite expensive, television ad campaign. Getting the press to propagate your message, even if they don't embrace it, works even better. And it makes you look more 'objective,' since you're not touting the spin entirely on your own.

Second, it's helped put the Department of Justice on the wrong defensive track. Had MS filed accurate briefs instead of the decoys which we suspect they submitted, the DoJ would, naturally, have advance knowledge of the company's intended strategy in court. Instead, the DoJ has had to devote time to defending Judge Jackson himself in its rebuttal, rather than defending his specific findings.

Third, we know that Redmond has the money to set one lot of shysters to the task of composing their decoy briefs, while setting another lot to devising the actual surprise attack which will be sprung before the bench in the appellate court. The DoJ, by comparison, has a far tighter budget, and must allocate money and personnel with considerable care. Thus MS is using the government's own budgetary constraints as a weapon.

Microsoft's shysters are negotiating with the DoJ to establish a topic list for oral arguments. The deadline for submission is Friday, 2 February; and if the two mighty contestants can't hash it out in time, the court will decide it for them. ®

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