The greatest antitrust show on earth. Again!

Top five reasons we should care about the appellate court hearings on Microsoft -- even though we really don't want to.

Published February 26, 2001 8:18PM (EST)

1) We've waited too long. It's been ages since the last juicy batch of antitrust news. Come on -- it was way back in September that the Supreme Court declined to hear the Microsoft case. Since then, all we've had to chew on is some squabbling about the format of the appellate court hearings: Should the arguments be presented in written form, or oral? After so many years of riveting drama, we deserve better than this. The citizens of our great nation have a clear moral right to yet another recapitulation of arguments over whether a Web browser is an integral part of an operating system.

2) The loopy-judge factor. We get to hear Microsoft's lawyers say nasty things about District Judge Thomas Penfield Jackson. In a twist that must have Justice Department antitrust lawyers contemplating ritual suicide, the legal consensus appears to be that the government's Achilles' heel is the behavior of the judge who ruled that Microsoft should be broken up. During the trial, Jackson made no attempt to hide his disdain of Microsoft. He's even on record belittling the appellate court now set to review his decision. And he went so far as to agree to be interviewed for Ken Auletta's recently published snooze-inducing account of the trial. What was he thinking?

3) The free-software angle. In mid-February, Microsoft executive Jim Allchin was widely quoted as declaring that open-source software was a threat to "innovation." He noted that Microsoft was busy lobbying policymakers to make sure that the government didn't offer undue support to open-source software. It doesn't appear that this will be a topic at the hearings, but it's a nice subplot. Maybe if the Justice Department is denied by the appellate court, all the disappointed prosecutors can go to work for Red Hat and sue for federal aid.

4) Monopoly? What monopoly? Over the past year Microsoft's share of the OS market and the Web browser market has grown even mightier. Microsoft is also under investigation for purchasing a stake in software maker Corel, which not only owns WordPerfect, a product Microsoft has already made irrelevant, but has had big plans for a Linux-based operating system. Funny, it abandoned those plans shortly after the Microsoft deal.

5) Salvation, Bush style. As final food for thought, while most antitrust specialists agree that the appellate court is unlikely to overturn Jackson's damning findings of fact, the judges may ask for a new trial if they choose to disagree with Jackson's proposed breakup remedy. And if that happens, chances are that a Department of Justice taking its cue from President Bush may not be so eager to pursue a harsh antitrust enforcement line. A new batch of Justice lawyers could get cozy with Microsoft and hammer out a face-saving settlement. We knew all along that Microsoft would do its best to prolong the legal agony until the point where it could gain some political leverage. Well, we're here. Welcome to the 21st century.

By Andrew Leonard

Andrew Leonard is a staff writer at Salon. On Twitter, @koxinga21.

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Department Of Justice Microsoft