Charles Cooper "IT's Like This..."

Microsoft has been in the dock for a month and, according to Mr Cooper, is looking like a loser...
Written by Charles Cooper, Contributor

Knowing full well the foolishness of prematurely calling the outcome of a horse race, allow me to ignore my own best advice and give it a try.

By now, a couple of things about the Microsoft antitrust trial are becoming increasingly clear:

  • This is going to be a marathon.
  • Microsoft has "loser" written all over its face. So taking it from the top, let's toss caution to the wind.
  • Here we are in Week 4 and only four witnesses have taken the oath. At the current rate, it's going to take another five months before the opposing sides finish with their published list of witnesses. And don't forget they each have the right to call to the stand an extra two witnesses. (Maybe we'll get to see Mr. Bill in the flesh before it's over?)

    Some legal beagles say it's a deliberate four-corners stalling tactic by Microsoft. The longer they drag things out, the more time they have to prepare their defence -- as well as a possible appeal.

    Anyway, Judge Thomas Penfield Jackson is already so painfully bored that at times he must be kicking himself for not taking early retirement. But even the sometimes somnolent Jackson can't help but notice the connect-the-dots picture painted by the Department of Justice's lead attorney, David Boies, and his minions.

    Each day, the government introduces into evidence yet another embarrassing memo or damning piece of testimony by a senior industry executive to support its antitrust allegations against Microsoft. Unlike a criminal case -- in which Boies would need to prove Microsoft's guilt beyond a reasonable doubt -- all he needs to do here is supply the court with a "preponderance of evidence."

    And each day, the pile of paper gets higher.

    Microsoft, which complains the government has changed its original charges, has a legitimate gripe. U.S. Assistant Attorney General Joel Klein is clearly moving the goalposts. Last May, the Feds charged Microsoft with illegally leveraging its hegemony in desktop operating systems to crush nascent competition in the Internet market. Then in early September, the Justice Department and 20 states tacked on new claims that Microsoft had illegally pressured other computer vendors in an illegal bid to limit competition and undercut emerging technologies.

    That's Microsoft's tough luck. The fact remains that the government has dredged up a pile of compelling evidence.

    And it's not just the tainted griping of an obviously interested rival such as Netscape. With the government providing air cover, America Online, Apple and Intel have all attacked Microsoft in court, reciting chapter and verse for Boies' benefit.

    What's more, the memos, which include discussions on measures and strategies to undercut Java and lock out Netscape, implicate many of Microsoft's senior executives. The e-mail trail is chockablock with let's-bomb-'em-into-the-Stone-Age ruminations. Of course, most of this stuff is intra-company thinking out loud, but I'm sure that the authors wish they could take their words back.

    In the beginning, Microsoft lividly blamed all its travails on a government-Netscape conspiracy.

    In his interrogation of Netscape CEO Jim Barksdale, for example, Microsoft's top trial attorney in this case, the oh-so-loveable John Warden, sought to make that fact stick when he charged Netscape with being a "ward" of the government and the mastermind behind the Justice Department's lawsuit. Front-page rhetoric, but Microsoft, which failed to prove that point, also failed to prove its subsequent allegation that it got sandbagged by Netscape. With Barksdale willing to help stick in the knife, the government supplied a mound of e-mail evidence to support its claim that the software giant sought to illegally divide up the Web browser market at a now infamous June 1995 meeting.

    The Redmondians tried hard to prove that Netscape executive Marc Andreessen broke the law by concocting the entire story, but in the end, Microsoft still came out with the short stick. The next three witnesses -- AOL, Apple and, even more troubling, its not-so-close Wintel partner, Intel -- also spilled their guts for the court's benefit. The Judge, who regularly overrules objections from Microsoft's lawyers, is taking copious notes.

    None of this is worrying the money moguls on Wall Street. Despite getting hauled into U.S. District Court to face all of Uncle Sam's righteous wrath, Microsoft enjoys a higher price-to-sales ratio today than at any time in its history.

    Perhaps they don't see any of this as especially troubling. And with a dozen witnesses still waiting to take the stand, the Sullivan and Cromwell lawyers carrying the ball for Microsoft are eventually going to have an opportunity to take the offensive.

    We'll see how good they really are then.

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