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If we'd kept fighting MS we'd have lost, DoJ tells judge

So it's the 'surrenderment,' then?

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The US Department of Justice, now firm buddies with Microsoft in arguing for the acceptance of the antitrust action settlement, claimed yesterday that the deal it struck with the company is better than it could have achieved if it had gone on fighting. Furthermore, claimed DoJ attorney Philip Beck, if agreement hadn't been achieved the DoJ would have been on a loser: "an uphill battle that likely would have been resolved against us."

Lest we forget, the DoJ actually won in the district court the first time around, with Judge Jackson agreeing that most of its case was proven, and ordering remedies of a similar order of toughness to those now demanded by the rebel States. We should also remember that, although the appeals court gave Jackson a thorough caning for his conduct, it agreed he wasn't biased against Microsoft, and confirmed that much of the case had indeed been established. There were some key aspects it tossed out, giving the DoJ the option of coming round again to establish them, and it tossed out major parts of the remedies because they were dependent on these.

One of the most important things the appeals court agreed on was that Microsoft was guilty of 'commingling' - the company had specifically bolted pieces of code together in order to weld IE into Windows for antit-competitive reasons. This is one of the aspects of the case that the States still pushing for a tougher settlement have been zeroing in on while taking depositions, it's one of the (many) matters that are barely addressed at all in the negotiated settlement, and it's one of the things the DoJ established most clearly the first time around.

But apparently, if the DoJ had pressed on with the States in search of tougher measures, it would probably have lost. Life, friends, is a puzzle, is it not?

Judge Colleen Kollar-Kottely as yet has not indicated whether she's going to buy the MS-DoJ deal or not, but yesterday she did ask Microsoft if it agreed with the DoJ's interpretation of the settlement terms. This is actually quite important, because it is perfectly possible and legal for the parties to agree the Revised Proposed Final Judgment, but to differ on its interpretation. Thus, Microsoft may not, probably doesn't, and legally doesn't have to, agree with the supplementary explanatory documentation the DoJ has issued; that was how the 1995 consent decree turned out not to mean what the DoJ thought it meant, and how it turned out Microsoft hadn't promised not to integrate IE with Windows after all.

Humorously, Microsoft's lawyers went into a huddle before coming up with: "We have a meeting of minds... [and] we certainly agree with [the RPFJ's] scope and operation." Was that yes? Not exactly, surely.

The case is now moving into its twin track phase. Yesterday the Judge was dealing with the dealmakers and with a gaggle of objectors claiming the deal was a farce. Next week, if the Judge doesn't grant Microsoft's request for a two week delay, the group which Redmond should really think of as the Unsettling States will weigh-in with Antitrust II - The Attorneys General Strike Back. ®

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