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MS not evil, baby strangling monopoly after all, say judges

Almost entirely totally exonerated and innocent, go back to go, bad DoJ and judge...

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The appeals court today handed Microsoft virtual total victory by tossing out practically all of Judge Jackson's earlier 'guilty as hell, take them out and shoot them,' verdict. For good measure, in a unanimous decision the court also tossed out Judge Jackson - if the new-look Bush DoJ doesn't cut a deal, then the case will be knocked back to a different judge.

The appeals court affirms "in part and [reverses] in part the District Court's judgement that Microsoft violated section 2 of the Sherman Act by employing anticompetitive means to maintain a monopoly in the operating system market". So they reckon Microsoft is at least slightly guilty of something here, but don't get too excited - it looks decidedly non-fatal for the company.

They conclude that Microsoft didn't illegally attempt to monopolise the browser market, and they don't think Microsoft illegally tied the browser to the OS. But they didn't think that last time around either, when they supported Microsoft's contention that it could, essentially, bundle anything it liked with the OS and call it progress/integration.

Next, as the District Court's remedies were dependent on stuff they've just chucked out, the remedies themselves have to be nixed as well. They add that they'd have thrown the remedies out anyway, even if they agreed with Jackson's judgement on everything else, because he "failed to hold an evidentiary hearing to address remedies-specific factual disputes." Here they're basically accepting the Microsoft pitch that Jackson's remedies were sprung on them without their being given adequate opportunity to argue. You may say they'd already had about two years to do that, we couldn't possibly comment.

Lastly, the remedies go out the window because Jackson "engaged in impermissible ex parte contacts by holding secret interviews with members of the media and made numerous offensive comments about Microsoft officials in public statements outside the courtroom, giving rise to an appearance of partiality." This one closely follows the Microsoft script; as has been pointed out here before, however, Jackson didn't say anything that could be construed as prejudicial for publication during the trial, and his occasional grouse at Microsoft's officials and lawyers could reasonably be interpreted as simply signalling to them that it would be as well to stop digging whichever hole they were currently in.

Given the appeals court's take on events, hindsight tells us he was being too clever/Machiavellian by half. His attempts to steer the trial to a managed conclusion and to bullet-proof his findings have backfired horribly, and the appearance of Dubya rather than Al Gore on the scene is quite likely to administer the coup de grace.

The DoJ could well now return to the table for talks about an agreed settlement. Microsoft historically is not a great agree-er, unless the opposition more or less agrees with it, so any deal is going to be a get out of jail free, and is likely to generate accusations of appalling spinelessness on the part of the DoJ. Alternatively, the DoJ may show it has enough spine left not to go for unconditional surrender. In addition, the States attorneys general who're party to the action won't fold, but they might find themselves having to appeal alone. And then there's Brussels, which has been cannily/dozily (we don't know which either) keeping its powder dry until the smoke from the US case clears. This is not, as they say, the beginning of the end but... ®

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