IP: Microsoft gets the better of today's court hearing

[Dave Farber <farber () cis upenn edu>]

Date: Tue, 21 Apr 1998 12:55:06 -0700 (PDT)
From: Declan McCullagh <declan () well com>




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http://cgi.pathfinder.com/time/daily/0,1237,101980421-microcourt,00.htm


time.com / TIME Daily
April 21, 1998


   WASHINGTON: Score round two to Microsoft? A Federal panel heard the
   software firm's unbundling appeal Tuesday with a sympathetic ear. "The
   judges were more critical of the Justice Department," says TIME Daily
   Washington correspondent Declan McCullagh, "interrupting each other to
   quiz the government's lawyer." Nor were the omens good for Judge
   Thomas Penfield Jackson, who made the original order that Microsoft
   disentangle Internet Explorer from Windows 95. "That's not the way we
   hand out preliminary injunctions up here," warned Judge Patricia Wald
   -- who is, in normal circumstances, a big fan of antitrust law.


   All in all, the judges were surprisingly tech-minded, offering
   lawyers on both sides an esoteric pop quiz. Is Internet Explorer
   integrated or bundled? Has any computer manufacturer taken advantage
   of the unbundling order? (No, shrugged the DOJ). And most importantly,
   how big will the Windows 95 market be after the June 25 release of
   Windows 98? For Judge Wald, that question was rhetorical: "It's going
   to be minuscule." Which means that whatever the appeals court rules in
   the next three months, it may not matter anyway. If the DOJ is indeed
   planning a wider antitrust case, it had better hurry up. --Chris Taylor


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http://cgi.pathfinder.com/netly/afternoon/0,1012,1918,00.html


time.com / The Netly News / Afternoon Line 
April 21, 1998
   
Lone Justice


   Scoring court hearings, let alone predicting winners, is always a
   chancy business. Every trial attorney can spin yarns of surprise
   upsets -- and upsetting surprises. But if this morning's oral
   arguments before the U.S. Court of Appeals for the District of
   Columbia is any indication, Microsoft is going to win the second round
   in its legal battle with the Department of Justice. The three appeals
   court judges repeatedly jabbed pointed questions at Douglas Melamed,
   principal deputy assistant attorney general for antitrust, sometimes
   interrupting each other in their eagerness. What was the point, asked
   Judge Stephen F. Williams, of the lower court's order, anyway? Did any
   computer manufacturers take advantage of Microsoft's
   not-exactly-voluntary offer to sell the browser front end without
   Windows 95? No, Melamed admitted. Judge Patricia Wald wondered if the
   current legal tussle was pointless. "Once Windows 98 hits the market,
   will there be any market for Windows 95?" Replied Melamed: "I don't
   know." Wald did. "It's going to be very minuscule," she predicted.
   Williams also said that since Windows 95 and Internet Explorer share a
   lot of the same code, it "seems to me to be kind of integrated." Ouch.


   This can hardly be encouraging news for U.S. District Judge Thomas
   Penfield Jackson, the author of the order in question. Even if the
   appeals court nixes Jackson's injunction, as now seems likely, the
   case is far from over. The panel could tell Jackson to continue with
   the case -- this time much more carefully. --By Declan
   McCullagh/Washington 
   
Suit of the Century


   As the millennium and its bug approach, high tech companies are
   starting to get nervous about their liability if their best efforts to
   eradicate the bug should fail and serious problems ensue. It's no
   surprise then that a group of tech companies is rallying behind a
   California state assembly bill that would protect them from punitive
   damages in the event of lawsuits arising form Y2K disruptions. Note
   that this does not eliminate their exposure by any means, since it
   would not apply to actual damages and would cover them only if they
   could show that they had made a demonstrable, good faith effort to
   overcome the glitch. What the industry fears almost more than an
   actual Y2K disaster is packs of lawyers smelling rich high tech blood,
   and with a ZD survey showing that only 17 percent of companies are
   currently prepared for the bug, there is clearly cause for
   trepidation. [By Jonathan Gregg]


[...snip...]




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