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MS takes a bow in court

Such philanthropists....

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As we reported earlier, the US government says it never had a chance to beat MS in court, so the settlement is the best that can be hoped for.

It was the appeals court decision, DoJ reckons, that ruined the government's case. "The causation issues would have been an uphill battle that would likely have been resolved against us," government lawyer Philip Beck explained.

By 'causation' we gather he means the question of whether specific decisions of MS honchos resulted in its becoming a monopoly, or whether it was destined to become one for more 'natural' reasons. For example, was Netscape such a weak product that it would have been obliterated by a better one in any case, or did bundling IE with Windows ruin an otherwise strong contender? Opinions on this sort of issue will vary, but proving it either way, MS and DoJ agree, is a vain exercise.

MS lawyer John Warden rushed to confirm the new explanation of why we're stuck with the government lube job. "Without causation, there's nothing to remedy," he said. And of course this implies that anything MS concedes in the settlement is some great humanitarian gift to its competitors and consumers.

And its this puling teenage-jock-style smugness, so often enacted by MS brass and shyster alike, that drives critics of the deal to distraction. We hear it again, when Warden lectures the judge on Microsoft's understanding of middleware.

Including Outlook Express and Media Player in this category is a monumental gift to all, Warden said. The settlement "greatly expands the court of appeals definition of middleware." And the cleverly-unenforcable promise to disclose APIs goes "far outside the case as tried," he trilled.

And we hear it yet again, as Judge Kollar-Kotelly probed MS on its disclosure of government and political lobbying relevant to the antitrust case. MS has been assuming that the start of the current court phase back in September is the appropriate start date for this sort of disclosure. But the judge said the period reaches back to mid-summer, during the appeals court phase.

And Microsoft's response? Try not to lose your lunch. The company will "investigate" to determine if it needs to disclose more information to the court.

I'd like to see any other defendant try that one. I'd like to see someone standing in the dock and telling the judge that he or she will "investigate" whether or not it's necessary to mind the court's understanding of the law.

You'd have to have the prosecution in your pocket to pull that one off, now wouldn't you? ®

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