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Appellate judges ship MS back to district court

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The smart choice: opportunity from uncertainty

The US Court of Appeals for the DC Circuit last week rejected Microsoft's request for a delay which would have postponed its return to district court until the US Supremes decided whether or not to hear arguments.

"We need not decide...whether Microsoft's objections constitute a 'substantial question' likely to lead to Supreme Court review, because Microsoft has failed to demonstrate any substantial harm that would result from the re-activation of the proceeding in the district court," the judges wrote.

"It appears that Microsoft has misconstrued our opinion, particularly with respect to what would have been required to justify vacating the district court's findings of fact and conclusions of law," the court also said.

And with that it was decided that MS will face the US Department of Justice once again in district court with a new judge: Clinton appointee Colleen Kollar-Kotelly, who was chosen at random and has no antitrust experience.

The company has been found not to be a browser monopolist, but quite the OS monopolist. Chief among the issues yet to be settled is whether or not tying the browser to the OS is illegal too.

The remedy must also be decided again since the appellate court struck down Judge Thomas Penfield Jackson's breakup order, chiefly because he refused to hold additional hearings for the remedy phase of the trial. He'd already heard quite enough rubbish from lawyers, he said in so many words, and moved abruptly to the off-with-their-heads phase.

Judge Jackson's impatience played rather badly on the appeals circuit, as did his colorful anti-MS remarks to journalists, made before the trial had ended.

Still, MS bashers need not despair; Judge Kotelly has every right to order a breakup herself, so long as she listens attentively to days of whingeing from MS shysters as to why she ought not. ®

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