US v Microsoft: Trial guide

After more than eight years of dancing around the issue, the U.S.
Written by Will Rodger, Contributor

After more than eight years of dancing around the issue, the U.S. Department of Justice, 20 states and the District of Columbia are putting Microsoft on the stand. Sometime during a six- to eight-week trial expected to start in the coming week, Justice will have to prove a series of assertions that until last May were only implied in all the years of previous antitrust action.

Here's a preview of what to expect from the 12 witnesses for each side.

The basic issues

  • Whether the integration of the software that has been distributed as Internet Explorer (IE) into Microsoft's market-dominating Windows operating system (OS) constitutes an illegal "tying" arrangement.
  • Whether Microsoft signed "exclusionary" contracts with Internet access, online service and content providers that promoted IE at the expense of rivals (for example, Netscape Communications Corp.'s Navigator).
  • Whether the software maker illegally used its monopoly power to restrict PC makers from customising the first screen that users see when they turn on their computers.
  • For starters, federal attorneys must prove Microsoft is a monopoly. Because the company already has 95 percent of the market for PC OSes, that shouldn't be too tough, most agree. But they can't stop there. They have to show Microsoft is using that power unfairly. They have to prove that when Microsoft includes IE gratis with the operating system, it really means to deprive other companies of their business; that when Microsoft dominates the browser market, it will dominate the Net, too.

    Microsoft's task is at least every bit as daunting. To win its case, the company has to convince the judge that when its execs talk about Netscape and make statements such as "cutting off their air supply," they're really not serious; that when they talk about producing a "polluted" version of Java, what they really mean is a "better" one; that when they sign deals with computer manufacturers, those original equipment manufacturers are still free to use someone else's OS.

    In fact, outside experts believe Microsoft has to convince Judge Thomas Penfield Jackson that antitrust action would deprive it of its "absolute right" to "innovate." So what should you do?

    First off, brush up on your antitrust law. (Hint: Monopolies are forbidden from acting "just like any other company" under antitrust law.) Second, remember not to believe one side until you've heard the other. Third, pull out this handy guide to the witnesses. Figure out who sounds most interesting, and then - if you dare - read that witness's first round of written testimony. The government witnesses' words will be posted to Justice's Microsoft home page at usdoj.gov/atr/cases/ms_index.htm. Microsoft will post its witnesses' pre-courtroom testimony to www.microsoft.com/presspass/doj/doj.htm.

    They both should show up on the Web sometime around the first day of the trial, which, at press time, was set to start October 19.

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