By eweek  |  Posted 2002-05-16 Print this article Print

-Fashioned Lawyering">

Old-Fashioned Lawyering

eWEEK:Lets get into that. You mentioned old-fashioned lawyering. You took a lot of criticism in the liability phase of this case because you stuck to that principle of old-fashioned lawyering. Do you feel vindicated?

Neukom:I do think that there is a material difference between the result at the conclusion of the trial and the result in the wake of the Court of Appeals decision. Six causes of action were brought against us in the spring of 1998. All that survived the Court of Appeals was one cause of action. And that cause of action has two parts. The first part is, do you have a monopoly, do you enjoy monopoly power in the defined market?

The second question is, have you engaged in any conduct which, according to the Sherman Act, is anti-competitive to maintain that monopoly? And we argued zealously that we didnt think we had the monopoly power that the Sherman Act requires. And we argued at length about what the relevant market was, where our market power should be measured. And at the end of all of this we accept the Court of Appeals conclusion that we have monopoly power. In and of itself, A, thats not illegal, and B, thats not bad. That is what all companies want to have. And all the evidence is we got it the old-fashioned way, we got it by better technology, by hard work and, frankly, by some luck.

So weve achieved a monopoly position according to the Court of Appeals. We accept that. Then, having done that, though, the wisdom of the law is that if youve got that monopoly position, then youve got to be more careful how you do business. And there are those 12 acts. Out of the Court of Appeals decision comes their finding that there were 12 activities the company engaged in which constituted anti-competitive conduct and were enough to support a conclusion that we had engaged in maintenance of an otherwise legal monopoly.

All of the states and the federal government decided not to pursue the tying claim. And they all decided not to pursue the breakup relief. So if you look at where the company stood in May of 1998 when the lawsuit was filed and where it stood in the fall of 2001 in the wake of the Court of Appeals decision, [theres] a very material difference.

eWEEK: How much, if at all, do you think Judge [Thomas Penfield] Jacksons commentshelped you?

Neukom:I think that the single most important event in the liability phase was the decision not to afford Microsoft any further proceedings on the question of relief. And I think when that decision was made, apparently with the full support of the plaintiffs, that was the first time I felt as though this case was starting to turn in a more rational direction.

eWEEK:How did you react to comments a few years ago when people said Microsoft was not Washington savvy? Was it true?

Neukom:I think thats a fair comment. I think we were under-resourced in the sense that we were not a regulated industry and we were hard at work in a very competitive business. And I think we did some things or didnt do some things or didnt say some things that left the power structure here thinking that we were being dismissive or even arrogant. And so I think that the observation that we didnt show ourselves to be savvy about how Washington, D.C., worked, I think thats a fair criticism to some extent going back to the early 90s. And I think we try to learn from smart people, and we have made very substantial efforts starting five or six years ago to build a team of people in our Washington, D.C., government affairs office.

Our approach has been that we are engaged in an information campaign. I always say to my government affairs people, "What I want you to do is to deliver accurate and timely information to the government." Theres a whole range of special interest in the government. And we dont want to be a special interest. We want to be viewed as brokers of honest information.

eWEEK:Can we talk about the Sun case? Whats new in the new case?

Neukom:I dont think I should comment on the current case because it is a current case. But I will say as to the first Sun case, it was another one of those situations where there were some very strong allegations made against my client. And it took a long time, working with the court, working with the other side, to try to get down to what the real differences were and what the real facts were. And at the end of that process, there was a reasonable conclusion to that litigation. A markedly different place from where that litigation started.

eWEEK:The whole open source issue, do you think thats a legally sound approach to creating, and more importantly, licensing software? The GPL in particular.

Neukom:Our view is that if some folks want to pursue an open source approach, thats fine so long as the rights and responsibilities of the GPL and other devices are clear and well-understood. What we dont want is for the government to take sides.

And we are perfectly willing to continue to compete on the merits. They have an interesting way of creating technology, we have a different way of creating it. And well see what the marketplace wants, but in the course of all of that, people need to be clear about it. They know how our licenses work, and they should understand how the GPL works and what the consequences are. Most importantly, the government shouldnt be weighing in saying were only going to buy open source stuff.

eWEEK:Did [Microsoft Chairman and Chief Software Architect Bill] Gates deliver on the points that Microsoft wanted to get across to the judge?

Neukom: I think he did. I think he did, certainly in the written [direct testimony], which has so much less impact because its not delivered live. But also, I think, on the stand.


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