Appeals court poised for shock ‘MS entirely innocent’ ruling

Crap defence at trial was brilliant strategy after all, apparently...

Examination of the documentation of the Microsoft trial surely leads any reasonable person to the conclusion that Microsoft is guilty as hell: of setting out to destroy Netscape, of threatening Apple until it toed the line, of ruling the PC OEMs with a rod of iron, and of much else. But similar examination of the appeals court proceedings of the past two days leaves one with the firm belief that Microsoft is going to get off.

So how on earth could this be? Although Judge Jackson received a serious caning from the appeals judges, it has little to do with that. Nor is it likely to be the case that the appeal judges specifically set out to find reasons, any reasons, why Microsoft should not go down - but effectively, that seems to be what they're actually doing. The key point seems to be that they are approaching the case from a narrow (one could surely say 'blinkered') legalistic point of view.

Whereas Judge Jackson wrestled (not always effectively, but commendably) with the technology, the appeals court is pushing tech as much to the side as it can, and picking away at legal precedent for all it's worth. Jackson took the view that the law as it stands does not adequately cover tying in the age of technology, Microsoft and the Internet. Therefore he made tentative attempts at applying it while sending out signals to higher courts that new precedents should be established. This lot, on the other hand, have noted the consequent holes in Jackson's conclusions and seem intent on using them to collapse the lot, rather than accepting that new law is needed.

Which it clearly is, if the current law does not adequately apply. If we merely consider the three major antitrust cases Microsoft has been fighting off in recent years (two of which have been settled by substantial but unspecified use of strong money), we have a pattern of anti-competitive behaviour that is clearly morally wrong, and surely ought to be legally wrong as well. It used bait and switch on Bristol to co-opt Unix developers then cut off their escape route, and in the bad old days of Dos went to extreme lengths to booby-trap rival DR-DOS. The evidence from the latter case and from US vs Microsoft provide ample testimony to heroic levels of mendacity, duplicity and plain old thuggery.

But hey, they're just playing hardball, and everybody does it, right?

Whatever, the appeals judges aren't showing any signs of attempting, as Jackson did, to apply the law to to hurt that has been quite clearly established, so in this round the Exhibits and Transcripts of Shame are unlikely to play a significant part. They gave Microsoft's attorney Richard Urowsky more than a fair hearing as he ran a series of claims that were at least contentious, at worst just plain wrong, past them, and when they chimed in you could see which way they were leaning. Although leaning may not be a strong enough word.

The court seems not to understand the point of a browserless OS, and doesn't seem inclined to think back to the time when it was unusual for a browser to be bundled (one of the key weaknesses of the DoJ case was of course that it was about history, and didn't adequately focus on what would be, or where we are now). Nor is the court wildly impressed by the concept that people might be hurt by not having something they'd never heard of, and here we get into Alice in Wonderland territory.

We quote: "By definition, they must already have heard about it [Netscape], or they wouldn't want it." So they're not hurt, right? But if they have heard about it and want it, they can get it, because nobody can rationally argue that if you want Netscape you can't get it relatively easily from a download or off a CD. "If you can get it it's not foreclosed," and that reasoning basically renders all of the arguments about control of the desktop and the OEM relationship smouldering ash. If the court carries on down that road, then it's neither here nor there that Microsoft shut off Netscape's distribution via OEMs and ISPs, because anybody who wanted Netscape could still get it if they tried.

There are other clear signposts telling the DoJ it might as well forget this round of the gig. The court quizzed government lawyer John Roberts on how reasonable it would be to impose the remedies, including breakup, if the IE-Windows tying charge fell. It seemed pretty clear the court's view was that the charge wouldn't stand, and that it wasn't reasonable.

A couple more soundbites make it even clearer where the trial is heading. First, we see how the court is refusing point blank to consider any relationship or leveraging between browser and platform. Here Roberts is told: "You are going back and forth between the platform or what the district court calls the comprehensive platform for the development of network-centric applications, and the browser market." Well exactly, you might think, this is surely the essence of the entire Netscape-Microsoft relationship-war. But nope - "They are distinct matters. We really have studied this hard, [our incredulous emphasis] and we understand the distinction. You can't have it both ways."

One might observe that a court that ruled the browser could be incorporated as part of the platform and that now is arguing they're distinct matters, while apparently adhering to its earlier ruling, is having it both ways. But Roberts was toast, anyway.

Finally, it's clear the court is preparing the way for it to do whatever it wants, without being constrained by anything Jackson did. Jackson went to great lengths to make his findings of fact watertight, on the basis that appeals courts do not usually overturn lower courts on the basis of facts. But here we have: "I hear my colleagues in the first part of this argument that we're supposed to defer to factual findings. But when I find factual findings that look very conclusionary and there is no citation to anything, I don't think my obligation as an appellate court is to defer to them. So what is the data?"

Or: "I'm not in the camp that says because the district court lists something under findings of fact it's gospel." Judge Edwards is quite clearly a Hero of Microsoft, already, but the rest of them don't look massively more government-friendly, and this round seems to be shaping up as a whitewash for the DoJ. What next? We have an awful feeling the trial may sputter to a dismal, unsatisfactory end where the winner (David Boies) loses, and - horror of horrors - the architects of the ludicrous fiasco that was Microsoft's defence strategy can loudly claim themselves entirely vindicated. Forever. Oh dear... ®

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