Changes in Industry Dim Relevance of Microsoft Trial
WASHINGTON — The antitrust trial of Microsoft Corp. was supposed to be a swift affair, but instead it has slowed to a crawl while events outside the courtroom appear to be overtaking the landmark case.
The world of high technology, moving at light speed compared to the federal judicial system, has shifted in ways that appear to undermine some of the government’s key points in the case and could leave moot the overall allegation that Microsoft used its dominance in the software industry to stifle competition in Internet technologies.
As the case has dragged on, Microsoft’s rivals have gained momentum in the marketplace, both by continuing to develop new technology and through mergers that have ratcheted up competition against the industry giant.
The government, used to marathon antitrust cases that sometimes have plodded on for more than a decade, hasn’t had to deal with such fast-paced events in other high-profile antitrust cases.
“The speed at which this case moves matters tremendously because of the rapid change taking place in the marketplace,” said Ernest Gellhorn, a law professor and antitrust expert at George Mason University in Fairfax, Va. “Technology moves much faster than anything we’ve ever seen. The AOL and Netscape merger radically changes the [legal] landscape to the disadvantage of the government. It makes their case exceedingly difficult.”
In the biggest business trial in the last decade, Microsoft is accused of using its dominance in the software industry to promote its own Internet technologies. The Justice Department, 20 states and the District of Columbia filed the suit in May. Since then, the industry has continued to redefine itself and its relationship to Microsoft.
Last month, for example, America Online Inc. announced a $4.2-billion bid to acquire Netscape Communications Corp., a deal that is widely seen as weakening the government’s contention that Microsoft has thwarted competition in the computer software industry. An AOL-Netscape combination would be a formidable competitor to Microsoft, making government sanctions seem less urgent.
Similarly, the so-called open source software movement, which is promoting free software such as the Linux operating system as an alternative to Microsoft’s Windows, has also gained significant momentum. Separately, Sun Microsystems said last week that it will relax its control over the Java programming language to speed Java’s acceptance as an alternative to Windows. Earlier this year, Netscape said it will share the source code of its Web browsing software, essentially making it a public commodity.
A world awash in free software would certainly pose a threat to Microsoft’s dominance. In addition, Sun and Oracle Corp. are expected to announce today that they will work together on a new type of computer that does not require an operating system. If the initiative bears fruit, it could go head-to-head with the software giant’s Windows NT operating system, designed for heavy-duty computing.
And next year, the government faces another possible hurdle when Microsoft plans to introduce the fourth generation of its dominant Windows operating system, which could render moot parts of the government’s case.
Protracted Litigation
The prospect of protracted litigation had Justice Department lead trial lawyer David Boies warning last week that he will seek a preliminary injunction to block Microsoft from offering its Windows 2000 operating system if the company brings it to market before the conclusion of the trial.
On top of the industry developments, a lengthy case may also make it difficult for the government to maintain its united front against Microsoft. Last week, the federal and state government attorneys aligned against Microsoft showed signs of strain as South Carolina announced it would pull out of the antitrust case.
U.S. District Judge Thomas Penfield Jackson has tried to move the case along, but has frequently encountered resistance from Microsoft lawyers, who have questioned government witnesses at length. As a result, a trial that was expected to last two months is now likely to drag on at least until spring.
The frustration over the pace of the trial erupted last week when Microsoft lawyer Michael Lacovara sought to get extra time to cross-examine a witness he had been questioning for five days. Jackson stormed out of the courtroom, then returned a while later to draw a line in the sand.
“Mr. Lacovara, you will conclude your recross-examination by 5 this evening,” Jackson thundered. “This has got to be brought to an end.”
But there is still no end in sight for a trial that’s being buffeted by external events that could potentially determine who wins and what kind of penalties might be imposed if Microsoft loses.
To be sure, government lawyers minimize the impact of AOL’s acquisition announcement. The deal could just as easily suggest that Netscape faced such overwhelming odds competing against Microsoft that it was forced to give up its independence, government lawyers say.
Some also accuse Microsoft of overstating the competitive challenge posed by the open source code movement. They note the products such as Linux are still too difficult to use to pose a significant challenge to Windows.
Nevertheless, Boies said he “would have liked to see the trial go faster,” adding that he had expected it to last only six to eight weeks.
Government lawyers remain confident that they are putting on a strong case. But they are reexamining what impact, if any, the AOL deal might have on their case. Indeed, many experts predict the longer the antitrust case drags on, the greater the likelihood other blockbuster deals or sea-changing technologies will emerge, further undermining the government’s case.
Microsoft general counsel Bill Neukom acknowledged that his company would have preferred more time to prepare its case. But he said that since Microsoft went on trial Oct. 19, “the pace of the trial has been reasonable.”
Neukom also disputed the contention of some government lawyers that the software giant was purposely trying to delay trial proceedings. “We have a right to question their [government] witnesses in detail,” Neukom said.
The Microsoft antitrust trial is widely seen as an important test of whether Jackson--who has a reputation as a slow-moving and prickly judge--can resolve the complex legal dispute before the issues it raises become moot.
Judge Target of Criticism
Although some experts, such as George Washington University visiting law professor William E. Kovacic, credit Jackson with using novel techniques to expedite the case (such as limiting each side to 12 expert witnesses), other critics say the jurist has contributed to the slow pace of the trial.
They note that Jackson routinely breaks for two-hour lunches each day and does not hold court on Fridays. He plans to break for the Christmas holiday starting Dec. 18 and won’t reopen his courtroom until Jan. 4.
Indeed, in contrast to Jackson’s vow of a speedy trial, the pace of proceedings is not unlike his traditional leisurely pace of adjudication, according to the Legal Times newspaper in Washington.
In 1995, a reporter for the publication--which calls Jackson “one of the slowest decision makers on U.S. District Court” in Washington--spent a day in Jackson’s courtroom. The reporter found that Jackson took a two-hour lunch and called for three 10-minute breaks that actually lasted about half an hour each. At the end of the day, the reporter calculated that the breaks ran 42 minutes longer than the actual trial proceedings.
And despite his anger at the lengthy questioning of witnesses by Microsoft lawyers, Jackson has been careful to give the company’s attorneys great leeway to question the government’s witnesses in an effort to be fair and avoid creating procedural issues that Microsoft might exploit on appeal, some experts say.
But Jackson’s staff and other admirers say he is a bright and compassionate jurist who has managed the Microsoft trial well.
Jackson’s “approach in managing this case could be a model in other monopolization cases,” Kovacic said. “Part of what the judge is showing is that this process need not take a decade or more. You can take a complex antitrust case and resolve it all in seven to eight months.”
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Get the latest updates on the Microsoft trial, along with text of key documents, profiles of key players and summaries of the opposing arguments on The Times’ Web site:
http://ukobiw.net/microsoft
