No Winners in Microsoft Court Case

What difference does the outcome of the Microsoft Corp. antitrust case make to you? Well, plenty. But there won’t be any real outcome here for quite some time.

And that’s bad for the computer industry, which can’t make long-term plans until everybody has a vague idea of whether Microsoft will even continue to exist in its current form.

It’s bad for Microsoft, which can’t begin the long and brutal process of rehabilitation until the courts officially catch it, wrestle it to the ground and administer the judicial equivalent of nuclear noogies to make the company acknowledge it’s been playing too rough.

And those two things are bad for you because they will hammer the economy, making any recovery from what now seems to be a certain recession take that much longer.

The legal circus could drag on for four more years, unless Microsoft executives come to their senses and agree to limit what they can incorporate into their operating systems.

But that seems even less likely now that seven members of what appears to be a bitterly divided U.S. Court of Appeals for the District of Columbia have gone on record this week bickering over the meaning of the evidence in the case.

If these folks can’t make sense of this mess, what chance do the rest of us have?

More precisely, part of the problem is just getting Microsoft to acknowledge that it has a problem. The odds of that happening grow longer every time our societal disciplinarians in the courts fail to speak with a single voice.

Up until now, the company has dismissed critics by claiming that they are merely greedy, politically opportunistic or just stupid.

Judge Thomas Penfield Jackson, who shepherded this trial into the appeals court, hasn’t exactly helped the situation with his public comments denigrating the House of Gates, which gave Microsoft’s handlers ample opportunity to paint him as a guy out to get the company, regardless of the facts.

OK, Jackson deserves credit for suggesting that Gates has a Napoleon complex. Especially since, as one of the richest men in the world, Gates could actually buy the French army and lay siege to the courthouse. But Jackson’s comments, before a trial is over, define injudicious.

Yet there is hope for a rational outcome to the case, assuming that the appeals court does not go completely off track and assert that Microsoft has broken no law and everything is working precisely as it should.

This is by no means a safe assumption, however, as Chief Judge Harry Edwards has been publicly grumbling about things such as an alleged lack of hard facts in Jackson’s opinion.

Expect the appeals court to toss out huge chunks of the government’s case and Jackson’s findings, such as the claim that Microsoft unfairly tied its Web browser to the operating system.

There’s no question that’s what the company did, but it’s not clear that the company broke existing antitrust law by doing so.

Some of Jackson’s conclusions should stick, however. For instance, Judge Stephen Williams described an agreement that Microsoft cudgeled a partner into signing as a “nakedly exclusionary contract.”

Williams is a guy who’s basically sympathetic to the company’s position. Get another six friends like this on the court and Microsoft executives should start buying property in Canada.

Those contracts have always been the strongest part of the government’s case. Best guess: Microsoft gets most of Jackson’s case tossed out--which means a breakup is off the table--and then agrees to play nice.

The real question is whether Microsoft can play nice. Let’s hope it learns how really soon, because if the company comes back before those same judges, the guys wearing the robes probably would feel pretty upset about getting suckered.

Ask Jackson. He’s the guy who approved Microsoft’s 1995 consent decree, in which company executives promised to stop breaking the law.

The current case is based on that consent decree. It alleges that the company completely ignored those promises.

What’s that old saying? Fool me once, shame on you. Fool me twice, shame on me.

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Dave Wilson is The Times’ personal technology columnist.

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