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Microsoft lawyer hectored by appellate judges

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MS on Trial "I don't see how you can get a reversal," Judge David Tatel flatly told Microsoft lawyer Richard Urowsky, early in Monday's round of oral arguments before the federal appeals bench. It was not an auspicious start.

Repeatedly, Urowsky was forced to concede under sharp questioning from the bench that many of the findings of fact by District Court Judge Thomas Penfield Jackson were correct and uncontestable.

Urowsky patiently, and very courteously, drummed away with his core message, that while Jackson's facts are generally quite straight, his conclusions of law are not. Again and again Urowsky gently insisted that these facts simply don't indicate illegal business practices.

"We have contested a relatively small number of [Jackson's] factual determinations as clearly erroneous; however, it is our position that even if the [appellate] court were to accept all of the findings of the District Court, the decision would have to be reversed in all respects as a matter of law," Urowsky boasted.

Most incredibly, he insisted that Microsoft's bundling of Internet Explorer with Windows did no harm to Netscape. It was just "very competitive competition," Urowsky explained in response to Judge Douglas Ginsburg's suggestion that the company prosecuted a "saturation bombing" campaign against Netscape.

"Nothing Microsoft did foreclosed Netscape from any portion of the marketplace," Urowsky said.

He also claimed that Microsoft's licensing arrangement with OEMs is not illegal, as Judge Jackson held, but in fact a matter of copyright protection.

The licenses require that all the company's icons be displayed on the desktop when it's first booted by the end user. "What is at issue in this dispute is only the very first time the computer is booted up," Urowsky insisted, and added that the company was "exercising its rights under federal copyright laws" to protect its OS from tinkering by OEMs.

The only real ally Microsoft appears to have at this point is Chief Judge Harry Edwards, who predicted that if the DoJ prevails, it will break up Microsoft only to enable another monopolist to take its place.

"You're going to replace one monopoly with another if you're right," Edwards told government lawyers in response to assertions that the company needs to be broken up.

The oral arguments phase is just beginning, as two days' worth of haggling before the bench is scheduled. If during the next two days the momentum should shift towards the government then we can expect MS to prepare its appeal for the US Supreme Court and whinge piteously in public.

If it shifts towards Microsoft, then we may see the Bush Administration's DoJ seeking a settlement with the software behemoth in lieu of a Supreme Court trial. Of course this sort of speculation assumes that the Supremes will in fact condescend to hear the case, which one really can't predict. ®

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