The federal appeals court reviewing the governments antitrust settlement with Microsoft Corp. reopened questions at the core of the historic case. Should the software company be allowed to commingle middleware with its operating system? To what extent must it disclose technical information? And what, exactly, did it gain by the illegal steps it took to maintain its desktop operating system monopoly?
A six-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit last week heard here two cases brought by Massachusetts and by two trade associations of rival technology companies. All seek to overturn the agreement entered one year ago to remedy the illegal actions Microsoft, based in Redmond., Wash., took vis-à-vis Netscape Navigator and Java.
The judges asked difficult, often highly technical questions of attorneys for both sides, making it difficult to forecast an outcome, but Microsofts challengers said they were heartened by the depth of the courts review.
The judges "were encouraging in the sense that they went to the heart of the case," said Robert Bork following the court arguments. Bork represented the Computer and Communications Industry Association and the Software and Information Industry Association. He was formerly a judge on the appeals court.
Massachusetts Attorney General Tom Reilly said the outcome of the cases will determine whether the countrys antitrust laws will be enforced and if they can be effective. Eighteen states plus the District of Columbia joined the antitrust suit against Microsoft. All but Massachusetts have settled.
"Were seeing the consolidation of power in the hands of a few," Reilly said. "Theres a lot at stake here for ordinary people."
Microsoft attorney Brad Smith said that the settlement is "tough but fair" and that his company is hopeful the agreement will stand.
Deputy Assistant Attorney General Deborah Majoras argued that trade groups are not entitled to intervene in the case, but several judges voiced skepticism about that position. They focused their questions on the substance of the antitrust remedy and grilled attorneys for both sides on their role in overseeing the settlement.
Microsoft attorney Steven Holly said the settlement "basically has to be a complete capitulation by government" for the court to overturn it.
No further arguments are expected before the panel, which will likely issue a ruling early next year.