In the second day of oral arguments before the US Court of Appeals
in Washington DC, judges gave the first hints that the order to
split Microsoft could be overturned as they attacked findings and
comments made by the District Court Judge in the antitrust case
which began in October 1998.
The judges were critical of District Court Judge Thomas Penfield
Jackson’s decision to split the company after only one day’s
hearings. Jackson refused to hear evidence on the matter from
senior Microsoft executives, including Bill Gates.
Jackson was also criticised for his comments to the media
following his ruling. He compared Bill Gates to Napoleon and
Microsoft to members of a Washington gang called the Newton Street
Crew. Members of the Appeals Court said his comments amounted to a
breach of judicial conduct, describing them as “beyond the pale”
and suggesting bias.
The Appeals Court said breaking up Microsoft would not solve
most of the antitrust violations for which the company was found
guilty. Some of the judges reasoned that if a smaller company
produced the Windows operating system it would still have a
monopoly on that market and it could produce its own internet
browser from scratch.
Judge Raymond Randolph said, “Splitting [Microsoft into] three
companies, each one of which gets Windows and they all compete
against each other. That I can understand.” The judges also found
that Jackson failed to properly define the market Microsoft was
accused of attacking.
Government lawyers admitted that, should the appeals court fail
to find a causal link between Microsoft’s actions and the demise of
its competitors, the case should be sent back to the lower court
for review.
If the appeals court rules that Netscape posed no competitive
threat to Microsoft or that Microsoft’s behaviour did not prevent
Netscape from effectively distributing its browser, Microsoft
stands to win its appeal.
