Bye-Bye Breakup?

Microsoft appeal may bring case full circle

After more than four years of investigation, prosecution and pitched courtroom battle, the Microsoft antitrust case may end up where it all began: with a settlement.

Legal experts said the governments faltering performance before the U.S. Court of Appeals for the District of Columbia Circuit means it will not convince any court to break the company into pieces. Instead, they said, the seven judges who heard arguments Feb. 26 and 27 will likely rule narrowly, declaring that Microsoft must accept some restrictions on how it does business.

"I think the most likely solution is something like this: a limited victory for the government on the maintenance of monopoly claim, settlement with the Justice Department and a petition [for an appeal hearing] from the states to the Supreme Court," said William Kovacic, a law professor at George Washington University.

Robert Lande, a professor of law at the University of Baltimore, also predicted a settlement based on a finding that Microsoft illegally defended an established monopoly, but no more.

In the end, Kovacic and Lande said, Microsoft at worst will be hobbled, but far from destroyed.

Kovacic and others earlier assumed the benchs conservative core of Douglas Ginsburg, A. Raymond Randolph, David Sentelle and Stephen Williams would favor Microsoft. And they were largely sympathetic to most arguments Microsoft made.

But more surprising was Chief Judge Harry Edwards. A moderate Democrat who has a mixed record on antitrust cases, Edwards led the charge against the government. The lead jurist said the comments of trial Judge Thomas Penfield Jackson outside the court were "beyond the pale." He assailed Jacksons Findings of Fact as a "sleight of hand." He said the government wanted it "both ways" when it urged the court to support Jacksons factual findings, yet refused to support the judges all-important description of the market he believed had been harmed by Microsoft.

Andy Gavil, a professor of law at Howard University, said the government has little chance of winning its claim that Microsoft tried to monopolize the browser market. The problem, he said, was the court did not seem satisfied with Jacksons definition of that market.

Instead, Gavil said, the court will likely find Microsoft acted only to defend its own monopoly. And while thats illegal under antitrust laws, it pales compared to the full list of alleged wrongdoing. If the courts decision follows his prediction, pressure to settle the case will be intense.

Microsofts current round of troubles began in 1996, when the Department of Justice began investigating possible violations of an earlier consent decree. That settlement laid to rest a probe into Microsofts software pricing policies.