Whom Do You Believe Today?

By Peter Coffee  |  Posted 2000-12-11

Microsoft blames this newspaper for the district Court ruling that the company must be broken up. Thats right, kill the messenger. In March, Judge Thomas Penfield Jackson reportedly said, "I am not at all comfortable with restructuring the company." Three months later, thats just what he ordered, apparently attributing his change of heart to "statements of Gates and Ballmer" that the judge said showed "intransigence."

Jackson questioned the parties to the case on May 24 about a statement attributed to Microsoft CEO Steve Ballmer here in these pages. I guess that makes eWeek the industrys journal of record, but it wasnt part of the trial record; hence, Microsofts objection on appeal.

Microsofts appellate "brief" (59,000 words!) also decries Jacksons reliance on summary witnesses, few in number, as a decision that "virtually ensured extensive reliance on hearsay"—that is, on testimony to facts not personally known to a witness. Jackson did this to limit the number of witnesses, a laudable goal but a somewhat daring execution.

Further, Microsoft strikes a telling blow when it asserts that "[Jacksons] most inculpatory findings consist of sweeping, conclusory assertions, unfounded inferences and speculative predictions." Ive previously pointed out such trial court "findings" as "It is unlikely ... that a sufficient number of open-source developers will commit to ... the large variety of applications that an operating system would need to [present] a viable alternative to Windows." No one could call that a statement of fact.

The Internets flood of data forces all of us to develop aggressive strategies for making sense of it all. But due process must be protected, and theres the dilemma for the Court of Appeals. Well all be watching to see if the judicial process can run at Internet speed.

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