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Microsoft has been under intense scrutiny by both the government and the media, and has become the politically correct target of choice for everyone from federal regulators, Congresscritters and States' Attorneys General; to jealous software-industry competitors with an anti-Microsoft axe to grind. All of which is whipping up mainstream media attention that is far from flattering to the computer industry! The most-serious of these attacks is the antitrust trial pitting Microsoft against the combined forces of the US Department of Justice and 19 states' Attorneys General.

Do not be deceived: the primary thrust of the government's case is not the "browser wars" between Microsoft and Netscape, as espoused by the press, nor any rational attempt to protect consumers, for whom computer hardware and software prices have dropped steadily year after year! Rather, this case is a political attack made at the urging of Microsoft's competitors, who are trying through the courts to stifle a company they can't compete with successfully in the marketplace! And, depending on the sanctions levied by the court, our tech-ignorant government risks the possible disassembly of the standard platform on which the PC industry is founded! What they and most people outside of the computer industry have failed (or refuse!) to realize is that the computer industry is based on standards. And if you work in this industry, your job is potentially on the line depending on the outcome of this trial!

As we wait to see what eventual remedies are imposed by the court, every possible solution, from splitting the company down the middle to closing them down all together, has been suggested — most vocally so by those who think they have something to gain by Microsoft's demise! But before we irreparably disassemble Microsoft (and possibly everyone's corporate IT infrastructure in the process!), I think it's important to look at a few facts that might help explain how we got here.

Judge Jackson's Finding of Facts. So that's how Windows got to be the way it is. Now lets look at Judge Thomas Jackson's Finding of Facts, and my comments about them (note that the words enclosed in square brackets are my own, inserting relevant statements from elsewhere in the judge's text for clarity):


Judge Jackson's Final Ruling. In his final ruling, which basically mirrored the DOJ proposal, Judge Jackson ordered that Microsoft:

The Appeals Court Ruling. Needless to say, Microsoft appealed Judge Jackson's ruling, and in their ruling, the Appeals Court made some significant rulings about the findings in the case:

The appeals court then went on to address the trial proceedings and subsequent remedies imposed by Judge Jackson. The court threw out Judge Jackson' break up of Microsoft, based on the following issues: "The District court's trial-phase procedures were comfortably within the bounds of its broad discretion to conduct trials as it sees fit. We conclude, however, that the District court's remedies decree must be vacated for three independent reasons: (1) the court failed to hold an evidentiary hearing when there were disputed facts; (2) the court failed to provide adequate reason for its decreed remedies; and (3) this Court has revised the scope of Microsoft's liability and it is impossible to determine to what extent that should affect the remedies provisions."

The remainder of the court's ruling was a detailed comment on judicial misconduct. The court cited four specific percepts in the Code of Conduct for United States Judges that: forbids making public comments on the merits of pending cases; requires the judge to avoid impropriety and the appearance of impropriety; forbids him or her from having ex parte communications (talking to others not part of the case) on the merits of the case; and requires the judge to step down from the case when his or her impartiality might be questioned. In their ruling, the court stated that "All indications are that the District Judge violated each of these ethical percepts by talking about the case with reporters. The violations were deliberate, repeated, egregious and flagrant." The court noted the extreme opposite views of both sides as to how the court should respond to this misconduct: Microsoft basically asked the court to "throw the bum out" along with his ruling, while the DOJ said to do nothing! The court said "We agree with neither position", and again embarked on a lengthy, well-reasoned discussion of its thinking, and summarized "We believe, therefore that the district Judge's interviews with reporters created an appearance that he was not acting impartially, as the Code of Conduct and § 455(a) require."

Finally, the court went on to discuss possible remedies for Judge Jackson's misconduct. They rejected Microsoft's proposal — to throw out the entire case from the point the impropriety first occurred, well before the Finding of Facts, — implying by quoting case law that this decision would be "draconian." They then proceeded to explain their thinking leading to their final remedy: "the appropriate remedy for violations of § 455(a) is disqualification of the District Judge retroactive only to the date he ordered breaking up Microsoft. We therefore will vacate that order in its entirety and will remand this case to a different District Judge, but will not set aside the existing Findings of Fact or Conclusions of Law . . . "


So Where Does This Leave Us? Judge Colleen Kollar-Kotelly, the new District Court judge assigned to the case, has the unenviable task of fashioning a remedy for a case that she hadn't heard direct evidence in. In order to "get smart" on the case, and to comply with the appeals court ruling that an evidentiary hearing is necessary to clear disputed testimony, she had to conduct another extended court session before being able to draft a remedy. None the less, let's review some of the issues and remedies proposed in this case, by the court and others:

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