|
  nother
good day in court for Microsoft." The Microsoft PR staff offered
that line day after day during the antitrust
trial. The press never believed them. Turning David Boies's spin
of the day into the story of the day, most of the press went out
of their way to ensure that Microsoft never had a good day.
Tuesday, Microsoft had a very good day.
To listen to the Microsoft appeal's oral
arguments on the web, I had to use the RealPlayer
made by one of Microsoft's competitors in Internet music and audio.
Microsoft has been giving its Windows Media Player away for free
for many years, and WMP is bundled with the Windows operating system.
Microsoft's operating-system "monopoly" doesn't give Microsoft the
power to crush competitors like Real Networks, which (unlike Netscape)
work hard to continually improve their product.
Like the media has always said, the case always was, and still is,
about hubris. It is proof that no one is above the law. Yet it seems
unlikely, even now, that the lawbreaker in question will admit to
even the slightest misconduct. Judge Jackson shows no remorse.
For all the motes that Judge Jackson found in Bill Gates's eye,
there are many more planks in Judge Jackson's.
Microsoft's "arrogance" was really naiveté. Its executives thought
they could just run a big business without having to buy into the
protection racket known as campaign contribution and lobbying. They
thought that their business practices were legitimate and lawful,
since those practices were just the same hardball tactics used by
their competitors; almost every act that Microsoft has been accused
of has also been perpetrated by members of the anti-Microsoft NOISE
coalition — Netscape, Oracle, IBM, Sun, and "Everyone Else"
(especially Novell). All of these practices are lawful, except when
a business is labeled a "monopoly." When Judge Jackson slapped that
label on Microsoft in 1999, Microsoft's actions as far back as 1994
were deemed retroactively illegal.Yet, after the two days of hearings
in the Microsoft appeal, it's not Microsoft's that's in trouble
with the D.C. Circuit, but Judge Jackson.
John Roberts, a private attorney representing the 18 states (plus
the District of Columbia) that have sued Microsoft, did not even
attempt to defend Judge Jackson's conduct. Even so, the D.C. Circuit
judges assaulted him furiously, with Chief Judge Harry Edwards taking
the lead. (Edwards is a highly respected liberal, known for very
careful work; he will almost certainly have a law school named after
him one day.) The judges knew, and then John Roberts knew, that
the judges weren't angry with Roberts. Their fury was directed at
none other than trial judge Thomas Penfield Jackson.
Jackson made an ass of the law, and of himself.
From the first days of the trial, Judge Jackson had been giving
Microsoft ammunition for use on appeal. Courtroom sketch artists
showed him dozing through witness testimony. But Jackson's ten hours
of interviews for Ken Auletta's book,
| “The
scathing denunciation of Judge Jackson which the D.C.
Circuit will write … will be used by generations of law
professors to teach their students how judges should not
behave.” |
|
World
War 3.0, were a godsend for Microsoft. While the trial was in
progress, Jackson was telling Auletta that Microsoft and its employees
were like a murderous drug gang, the Japanese military dictatorship
that lost World War II, even Napoleon. These interviews provided
the smoking gun for what many people familiar with federal courts
in Washington have long believed — that Judge Jackson is a
self-important, arrogant, and not particularly competent figure
who doesn't feel bound by the rules that other judges must obey.
In these interviews, Jackson did not simply wade into a gray area
of judicial ethics. He jumped far over the line. "Beyond the pale,"
in Chief Judge Edwards's words. Judge Edwards suggested that the
comments violated Jackson's judicial oath of office.
Not only did Jackson display obvious antipathy for Microsoft, he
expressed a strong antipathy for the D.C. Court of Appeals itself.
He insulted the judges' intelligence and legal acumen — knowing
that he was speaking on the record, and that his comments would
be read by the appellate judges.
Jackson went on to explain that he felt "wounded" when the D.C.
Circuit reversed him in a 1997-98 case involving Microsoft. There,
the D.C. Circuit had ruled that Jackson had seriously misread the
terms of a consent decree between Microsoft and the Department of
Justice. Indeed, Jackson was so obviously "wounded" by being reversed
by the D.C. Circuit that his findings of fact in the current Microsoft
case were a pointed challenge to the Circuit. In the consent-decree
case, the D.C. Circuit had written that judges should not put a
"thumb on the scales" of computer innovation. Judge Jackson took
that metaphor and threw it back in the D.C. Circuit's face; he wrote
that Microsoft had put its "thumb on the scales" of competitive
innovation.
Jackson might have expected to get away with his legal braggadocio
because he thought the Supreme Court would take the case directly,
bypassing the federal Court of Appeals. But the Supreme Court refused
to hear the case, and sent it to the Court of Appeals. While the
Supreme Court, as a rule, does not offer any reasons for refusing
to hear particular cases, it is not unreasonable to believe that
the Supreme Court Justices were familiar with Jackson's reputation
and thus wanted to steer clear of one his cases. Jackson certainly
did not help his cause when he set forth on a public-speaking tour
about the Microsoft case, even while his attempt to gain expedited
Supreme Court review was pending before the Supreme Court.
The Supreme Court was probably also following its normal practice
of not taking cases which don't have a well-developed factual record.
Jackson had concluded the trial by ordering Microsoft to be broken
up, yet Jackson did not allow even a single day of hearings or the
cross-examination of a single witness to explore the putative effect
of that remedy. The extreme absence of evidence in support of the
remedy was matched only by the extreme nature of the remedy. Jackson
was the only judge in American history who had ordered the antitrust
break-up of a non-predatory company, i.e., one that had not grown
by dint of mergers and acquisitions.
As the oral arguments on Tuesday ably demonstrated, Judge Jackson
had fallen well below the standards of judicial competence.
David Frederick for the Department of Justice started his oral argument
on Tuesday by acknowledging the "lack of clarity" in Jackson's findings
of fact concerning a 1995 meeting between Microsoft and Netscape.
During oral argument, Chief Judge Edwards zeroed in on Jackson's
shifting definition of what market Microsoft was supposedly attempting
to monopolize: "[T]he District Court has flipped back and forth
on the definition of the relevant market. Those findings are absolutely
unclear… [T]here are sleights of hand going on here… The
District Court made no appropriate finding of the relevant market.
That's the confusion on the district court's findings. That's what
you're running from."
Judge Jackson had made a finding of fact predicting that AOL (which
purchased Netscape during the trial) would continue to use Microsoft's
Internet Explorer as the AOL web browser. But, in actuality, as
the Court of Appeals pointed out, the new AOL 6.0 pushes AOL's customers
(one-third of all U.S. web users) onto the Netscape browser.
In June 2000, when Judge Jackson ordered the Microsoft break-up
and imposed restrictions on Microsoft's software design — but
refused to accept any evidence regarding those remedies — Judge
Jackson repeated the same type of error that he had made in 1997
during the Microsoft consent-decree case. Then, in December 1997,
Jackson imposed a preliminary injunction without the proper notice
and opportunity for a hearing which is required by due process and
by the Federal Rules of Civil Procedure. The remedy was technically
absurd; in 1997, literal compliance with Jackson's injunction required
Microsoft to sell a version of Windows 95 that wouldn't work. (Jackson
then got very angry when Microsoft did exactly what he had ordered.)
On Tuesday, the D.C. Circuit offered no objections to Microsoft
attorney Steve Holley's explanation of how the Jackson restrictions
on software would effectively make it impossible to improve future
versions of Windows.
The D.C. Circuit reversed trial judge Jackson in 1998, and it is
very plainly going to do so again this year.
A thoroughly slanted story in the Los Angeles Times fretted
at the collapse of the government's case, worrying that Tuesday's
events would make Microsoft reluctant to reach a settlement with
the federal government. In fact, as Ken Auletta's book details,
Microsoft actually signed an agreement last year with the Department
of Justice, which would have ended the case; but the state-attorneys
general balked.
Most of the media, though, reported the obvious: The possibility
that Microsoft will be broken up is nil. The Court of Appeals believes
that Judge Jackson has done a miserable job, and will give almost
nothing Jackson has done the slightest deference. The question now
is whether Microsoft will win a total victory on appeal, or whether
the D.C. Circuit will throw the DOJ a large enough branch on which
it could limp back into a new federal district court (certainly
not Jackson's).
Then, I predict, the Bush/Ashcroft/James team will settle the case
with Microsoft. Microsoft will agree to some minor restrictions
on its business practices (e.g., allowing computer manufacturers
more flexibility to alter the Windows start-up screen), but will
not have to limit its software design.
The state-attorneys general will probably try to continue the case,
but they won't have David Boies (who isn't looking so smart these
days, anyway), nor will they have the vast resources of the Department
of Justice. It will take some time for the states to finish a second
trial phase in which a federal judge would do what Jackson failed
to do the first time. Then, the case would go back to the D.C. Circuit
Court of Appeals. And by then, the case will be an anachronism —
as irrelevant to the real world as an antitrust case against Ford
Motor Company over the 1962 country-sedan station wagon.
The written opinion in United States v. Microsoft
that the D.C. Circuit will issue, perhaps this summer, will very
likely land in the law books. The opinion may not show up in the
antitrust textbooks, however, because much of what the opinion will
have to say will be an explanation of why the trial judge failed
to amass a proper factual record. And how the court imposed an extreme,
punitive break-up without following proper procedures. The D.C.
Court may issue more of a civil-procedure opinion than an antitrust
opinion.
But the place where United States v. Microsoft is
sure to endure for the ages is in Legal Ethics textbooks. The scathing
denunciation of Judge Jackson which the D.C. Circuit will write
— Chief Judge Edwards may well write for a unanimous court
— will be used by generations of law professors to teach their
students how judges should not behave.
The Microsoft case not only made Judge Jackson famous for a couple
years, it will continue to make him a famous judge for decades to
come — long after the phrase "web browser" has become archaic
language. But Jackson will not be famous in the role he presumed
for himself, as the antitrust Solomon who cut Microsoft in half.
Rather, he will literally become the textbook example of a bad judge.
|
