6.07.00
C. Boyden Gray on Microsoft

6.06.00
Donal Rumsfeld Says

6.01.00
Spencer Eig Says

6.01.00
James Carville On Bob Casey

5.31.00
Murray Sabrin On NJ's Senate Race

5.25.00
John Zogby On Hillary & Lazio

5.24.00
Lucianne Goldberg on Linda Tripp

5.23.00
Matt Glavin on Clinton's Disbarment

5.22.00
Mike Long On Rick Lazio

5.19.00
Bill Paxon On Rudy's Exit

5.12.00
Peggy Noonan on Rudy & Hillary

5.11.00
John Zogby on Rudy

5.11.00
Linda Tripp lawyer Joe Murtha

5.10.00
Alan Dershowitz

6/07/00 6:40 p.m.
C. Boyden Gray on Microsoft
“I think Microsoft will win . . . But it may take maybe two, maybe three years before it is all over.”

By Kathryn Jean Lopez, NR associate editor------------lopezk@nationalreview.com

. Boyden Gray, former counsel to President Bush, is currently representing the Association for Competitive Technology, a group of software writers for Windows who recently filed a friend-of-the-court brief in support of Microsoft.

Lopez: Were there any surprises in Judge Thomas Penfield Jackson's decision today?

Gray: Well, not in the remedy. He just adopted what the government asked. But in his introduction, I was really quite surprised by the tone of it. Especially two things: It was obvious he argues from established precedent that there could be a breakup here, when this is the first time such a company has ever been broken up by a court involuntarily. So, that's the first point. The second point is that he says that Microsoft may very well continue to do to other markets what they've done in the PC operating-system and the browser markets. Well, the court explicitly found nothing illegal in the competition for the operating-system market. And the browser market is a curious thing to revert to, since Microsoft lost that war to Netscape — now that America Online is going to switch to Netscape. So it's a very unusual introduction that really doesn't make any sense to me. I must say that I am quite surprised by it.

Lopez: What happens next?

Gray: Microsoft will seek an immediate appeal in the court of appeals. I think the government might seek to have the court send it directly to the Supreme Court. But the Supreme Court doesn't have to take it. I don't think they will. And so Microsoft will be back in the court of appeals. Microsoft will ask the court of appeals for a stay of the conduct remedies. I believe it will probably get it, which is to say a suspension of conduct remedies pending appeal. And I think Microsoft will win the appeal. But it may take maybe two, maybe three years before it is all over. I think Microsoft will prevail, but in the interim it is going to have this cloud hanging over it, and that is not a good thing for the economy.

Lopez: Why will Microsoft ultimately win?

Gray: Because they have a very strong case on appeal. Now, why's that? The reason is as follows: The judge's rulings all have to do with Microsoft's behavior in the browser war between Internet Explorer and Netscape Navigator, and the fact of the matter is, in the first place, Microsoft didn't do anything remotely illegal in winning the war temporarily. It was a choice by AOL to pick Microsoft even after it had purchased Netscape, to use Microsoft's browser over Netscape's browser. Now, of course, AOL has decided it is going to switch to Netscape's browser. And so Netscape is the winner. Not only did Microsoft not do anything illegal, it didn't even win. It is being broken up for a war it didn't even win? Now, if that does provoke laughter...I just don't understand this. My 14-year-old daughter doesn't even understand this. I had lunch with her today, and she asked me what this case is about. She's not a computer expert, she writes her papers on the computer, she has AOL, she goes in the chat rooms and talks with her buddies. She says to me, "What's the deal?" I said, "Well, Microsoft is accused of having beaten up Netscape Navigator and therefore is being broken up." Then she looked at me and says, "But AOL is switching to Navigator. And AOL controls the access market, so Microsoft didn't win the war." And I said, "You're right, dear." And she asked, "What are they doing that for?" Now my 14-year-old sees this very clearly. I don't understand what's wrong with everybody else.

Lopez: Invariably, every wire story I've read has mentioned AT&T. Is this anything like the AT&T breakup?

Gray: Absolutely not. In the first place, AT&T agreed to the breakup. There are three major differences. 1) It agreed to do it. It was not forced to do so by a court. 2) It agreed to do so because it was going to be deregulated, and that's why the government brought the suit to begin with, to deregulate a government-enforced monopoly, which we don't have here. The government isn't protecting Microsoft's monopoly the way they were AT&T's. And the third thing, is AT&T was an amalgamation, primarily of individual operating companies that had been put together around the turn of the century. And all the court did was, with AT&T's consent, break it back into the pieces that had originally existed. Microsoft has never existed in different pieces. The two pieces that it will be broken into are totally products of the court's imagination. They don't have any relevance to anything Microsoft ever was. Microsoft wasn't a merger of the operating-system company and the application company. Microsoft never merged with anybody, it's grown internally. And Windows has been in existence in its current form only for about five years, since the winter of 1995 — it's five years old. And the AT&T monopoly was more than a half-century old. So there is absolutely no parallel whatsoever. The lawsuit against AT&T was primarily brought to deregulate. This lawsuit is bringing regulation into an unregulated and fast-moving and dynamic industry. It is absolutely, totally the reverse of the AT&T case.

Columns / Current Issue / Goldberg File / Nota Bene
Washington Bulletin / Subscribe / Ad Info / Home