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MS and the DOJ Return to the Ring
Johan Jonasson writes "ZDNet reports that the opening round in the appeals phase of the Microsoft case gets under way Monday, when the company is scheduled to fire the next salvos in its battle to prevent a breakup. In a 150-page document, the company will try to convince an appeals court to overturn a lower court ruling that would split the software giant into two parts."
... the M$ antitrust lawsuit or the election?
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BACKNEXTFINISHCANCEL
Someone please moderate the above post as Troll, because only a moron would think that the AT&T breakup was a bad thing. The only thing that has died was an illegal monopoly that overcharged for everything and didn't offer any new services.
Here are some of the new technologies and products that have come out since the break up:
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And the men who hold high places must be the ones who start
To mold a new reality... closer to the heart
The D.C. Circuit Court of Appeals has set up a web page for No. 00-5212, United States v. Microsoft, and No. 00-5213, New York, et al. v. Microsoft. The page includes a schedule and court documents.
In addition, you can join an official mailing list to be notified of submission of new pleadings or court orders.
According to James Grimaldi of The Washington Post, Microsoft intends to target District Court Judge Thomas Penfield Jackson in its 150-page appeal Monday. Others predict it is a distraction to demand recusal for Jackson's comments to news media, released after his decision.
As I mentioned in discussing another /. topic, the D.C. Circuit Court judges are exceptionally savvy about technology, and are equipped with Apple Powerbooks. Unfortunately, however, it appears that some of the judges on the panel will have to recuse themselves because they were Justice Department employees before becoming judges--and those judges had considerable antitrust experience, in contrast to the remaining judges.
Let's hope that the current popularity among some "pundits" to bash the judiciary does not carry over to politicizing and weakening the verdict all of us need in this case in order to carry out business in this new era.
First off, one thing to remember about appellate judges. They're extremely busy people, with very little time to waste. If you want to score points with an appellate judge, the way you do it is to keep your arguments clear, concise, and realistic. If there were three "real errors" in your trial and another twelve "didn't affect the outcome, but still wrong", ignore the twelve and focus on the three.
If you put all fifteen in your brief and force the judges to figure out, on their own, that three of the issues were worthwhile and the other twelve was just attorney ego-stroking, don't be surprised if Los Federales take a very dim view of you.
Microsoft lost in trial court, but they wouldn't have lost as badly if they hadn't committed the cardinal sin of pissing off the judge. You can get past any legal hurdle in any courtroom except that one.
With a 150-page legal brief, which the appellate judges will have to examine point-by-point in their opinion, Microsoft is guaranteeing to make a lot of judges on the appellate bench unhappy, too.
Were I Microsoft, I'd have focused on only a handful of issues (and maybe made a token attempt at discrediting James Allchin, since he turned out to be Boies' best witness). I sure as hell wouldn't go about writing a 150-page monster which is guaranteed to make me enemies of the judges before I ever set foot in their courtroom for oral arguments.
First, you aren't allowed to introduce new evidence at the appellate level (except in extremely unusual circumstances). There's no new testimony allowed, there's no new evidence allowed. All you're allowed to argue on is the court record.
Microsoft had plenty of opportunity to show "features unavailable to them in a non-Microsoft browser". The reality of it is, not only did they not show this, their own witness discredited this claim.
James Allchin's direct testimony (submitted in written form) claimed that customers benefitted from the integration of browser and OS in ways which were not possible with the products being separate. He had seventeen or eighteen points which he hammered on.
When Boies cross-examined Allchin, Boies went step-by-step through Allchin's direct testimony and asked him if those exact same benefits couldn't be obtained by downloading IE 4.0 as a separate product and installing it on Win95/B.
On every single claim, Allchin was forced to admit that "correct, the integration offers no advantage in this case".
Boies' cross of Allchin ought to do in the Litigants' Hall of Fame. Allchin was bloodily eviscerated on the witness stand, and Microsoft's strongest witness turned out to be the strongest witness, all right... strongest PLAINTIFF'S witness.
They might argue that IE/Win is beneficial to the users, but the court record shows MS's own witness admitting, seventeen times, that the integration conferred no benefit.
In other words, they're just putting that argument in there to look good. I'd expect the appellate judges to come down pretty harshly on them for it.
Another thing to keep in mind--the last time the appellate bench overruled Jackson, they said that tying products together was lawful as long as it conferred a benefit to the consumer. Most people don't remember that; all they remember is "they said the `integration' was okay". Microsoft is apparently depending on the appellate court to say that integration is always okay.
But if the appellate court holds to their earlier opinion, Microsoft is in a hell of a lot of hot water.