Microsoft Wins Another Year

The judge's smile might mask seething anger at Microsoft's maneuver.

There they go again. Its the kind of chutzpah that got them on the wrong side of Judge Jackson. Now Microsofts lawyers seem bent on trying the patience of Judge Kollar-Kotelly.

Responding to a request to come up with areas of potential compromise, the Redmond legal team declined in a way that could be construed as showing disrespect for the judge as well as the legal system that has found their company guilty.

Microsoft attorney John Wardens statement that the only change Microsoft is willing to contemplate is an elimination of the conditions to which it agreed to settle with the DOJ is the kind of wise-guy remark that schoolteachers and judges seldom appreciate. While outwardly they might smile, as Kollar-Kotelly reportedly did, inwardly they might seethe. But you can forget about her taking the bait as Jackson did by making public statements critical of Microsoft. Kollar-Kotelly has been exceedingly scrupulous in procedural matters to avoid being overturned on appeal.

My guess is that she will not go with the Microsoft-DOJ settlement as written but will try to plug some of the larger holes. Then Microsoft will appeal, gaining more of the commodity most precious to it, time. "This extends the timeline at least another year," Andrew Gavil, a law professor at Howard University School of Law, told me, noting that in the four years since this case began, Microsoft has suffered no judicial restrictions.

And another thing: Attorney for the states Brendan Sullivan said Microsoft still doesnt "get it"—that it is in violation of antitrust law and therefore deserving of remedies. Sullivan might be right. But in understanding the cost-benefit calculus of legal strategy, Microsoft indeed gets it. Big time.

The headline should read: "Stonewalling gets Microsoft five years—of freedom."

Is Microsoft mooning the ogre this time, or will its strategy work once again? Tell me at