When President Bush took office last January, supporters of the
government's antitrust case against Microsoft feared that the new
administration would seek an easy settlement. But legal experts on
both sides of the fight said today that they see little difference
so far between the current administration and the Clinton
administration that initiated the historic lawsuit.
The Justice Department "has determined to press ahead in a very
vigorous way", said Kenneth Starr, a former appeals court judge,
and the prosecutor who led the Whitewater inquiry that uncovered
President Clinton's affair with Monica Lewinsky.
Starr, who is now advising ProComp, a trade group that includes
Microsoft competitors backing the government's case, cited a
government filing earlier this month. In this, the US Department of
Justice and 19 state attorneys general wrote, "Delay in imposing an
effective remedy inflicts substantial and widespread consumer
injury and needlessly prolongs uncertainty in the computer
industry."
The message from the government is, "we really do not want to
dally, the stakes in this industry are too high," said Starr, who
appeared on a Federalist Society-sponsored panel to discuss the
case with former judge Robert Bork; C. Boyden Gray, former White
House counsel in the first Bush administration; and George Priest,
a Yale University law school professor.
Priest, who has consulted for Microsoft, agreed that the Bush
administration hasn't shifted course on antitrust enforcement.
Moreover, "there are serious political difficulties with a
settlement that looks as if it's disregarding what the Court of
Appeals has found illegal in Microsoft's behaviour."
Nonetheless, Priest argued that the Court of Appeals' 28 June
decision was a victory for the company that won't affect its new XP
operating system or future operating system innovations. He called
a possible break-up of the company a "fantasy".
Last month, the US Court of Appeals upheld a lower-court finding
that Microsoft had illegally maintained a monopoly in operating
systems. But in its decision, the court rejected trial Judge Thomas
Penfield Jackson's plan to divide the company in two, thus
separating its operating system unit from other lines of business.
The appeals court also overturned the lower court's finding that
Microsoft had illegally monopolised the browser market.
On the third major issue before the court - whether the company had
illegally tied the browser to the operating system - the appeals
court, in remanding the case to the lower court, said the tying
issue had to be considered using a different legal standard that
also considers the consumer benefit of integration.
In a seemingly contradictory part of the decision, the appeals
court said Microsoft's commingling of the Internet Explorer code
with the operating system code was anti-competitive. But Priest
said commingling is a technical issue similar to the court's
faulting the company for not allowing consumers to add or remove
the browser.
That issue "really amounts to very little", he said. The company
earlier this month said it would restore the Add/Remove function
for Internet Explorer.
While Microsoft faces ongoing litigation, particularly from private
parties seeking damages in the wake of the appeals court decision,
Priest said he doesn't believe it "will in any way be crucial to
the country or to consumers" because it will "not in any way deter
innovation."
Bork, who, like Starr, is advising ProComp, is convinced that the
government still has a "sound case for structural relief".
"If you have injunctive relief, it will turn into a regulatory
mess, in which the Department of Justice will act as a regulatory
agency," said Bork. "You will have a much cleaner and longer effect
and restore competition if you break Microsoft into three parts -
that is, applications, operating system and browser."