Appeal court judges in Washington DC are divided over the findings
of the lower court judge, Thomas Penfield Jackson, who ruled that
Microsoft was in breach of antitrust law and should be broken up
into two smaller companies. During a hearing yesterday, seven
judges heard oral arguments from both sides which are due to
continue today.
Chief Judge Harry Edwards said of Jackson’s findings, which fill
200 pages, “I find no support for them.” Another judge criticised
Microsoft for its appeal brief saying, “It seems like it was
written for the jury,” because the company was re-arguing some of
the facts which, he implied, were not open to dispute. A third
judge backed this view.
A crucial part of the appeal is for the court to decide whether
the bundling of Internet Explorer with the Windows operating system
is a violation of antitrust law. A US antitrust professor, Bob
Lande, told the news service CNet.com that this could be decided on
the basis of one of two principles: that bundling would be legal if
a theoretical customer benefit existed; or alternatively, that it
would only be legal if customers demanded the
bundling.
Lande explained that the government will likely argue that,
under the latter interpretation, Microsoft must fail because people
still download Netscape, the competitor to Microsoft’s internet
browser.
However, Judge Stephen Williams said yesterday that the idea of
customers not wanting the browser bundled with Windows
“makes absolutely no sense.” Chief Judge Harry Edwards questioned
the government’s lawyers over whether Netscape ever intended to
produce an operating system to compete with Windows, saying he
found no evidence that Netscape and Windows were direct competitors
- meaning there could not be anti-competitive practices.
Commentators have noted partisan differences in the approaches
of the judges, three of whom are Democrats, four of whom are
Republicans.
