After 2 days in front of an appellate court, it's as if the Microsoft antitrust trial never happened. The original court vilified and demonized Microsoft during virtually the entire trial, but this morning, the company finds itself in a dramatically different situation because the US Court of Appeals has cast doubts about the antitrust trial, the evidence, and even the judge who tried the case. In the appellate court's most strongly worded comment about the case, Justice David Sentelle noted that the order to break up Microsoft will be rescinded if the justices refute any of the facts the judge in the original case presented. As of now, Judge Thomas Penfield Jackson's damning order to break up Microsoft looks like it will be swiftly reversed.
"If there isn't a proper finding \[of fact\], then we would have to at least send this back for some trial judge to weigh the facts," Justice Sentelle proposed. If the findings of fact are in any way reversed, which is rare at the appellate level but increasingly possible in this case, the guilty verdict and subsequent breakup ruling against Microsoft also must be revisited.
An examination of Jackson's behavior provided an interesting sideshow during yesterday's hearing. Microsoft has long complained about the judge's bias against the company, and the Appeals Court specifically set aside time for this issue despite the fact that no one, Microsoft included, had formally requested such a thing. The court's attitude toward Jackson was clear from the outset; the panel of judges pointed out that actual bias isn't the issue but rather the appearance of bias. If Jackson appears to be biased against Microsoft, his ruling against Microsoft could be nullified. Although the appeals court gave no indication that it would pursue this option, the justices were clearly upset about Jackson's comments to the media and his courtroom theatrics; Jackson was highly critical of Microsoft throughout the process.
"It's beyond the pale!" Chief Justice Harry Edwards yelled at one point, clearly agitated about Jackson's comments to the media. "There are lots of things we think about advocates and parties. We don't go off and shoot off our mouths. That would make a sham of the proceedings. We just don't do it," Edwards added. "It's a matter of appearances," said Justice Tatel.
In another interesting exchange, the justices explored Jackson's reasons for wanting to break up Microsoft. The Appeals Court said it was "crystal clear" that Jackson pinned the order on Microsoft's decision to integrate Internet Explorer (IE) with Windows. If this decision was indeed the sole reason for breaking up the company, Justice Sentelle said, the ruling is unduly harsh. The court appears to accept the fact that Microsoft tied IE to Windows solely to harm a competitor (Netscape) and not to benefit consumers in any way. But Edwards noted that it's "absurd" to think that there's now a market for a browserless OS. So regardless of why Microsoft integrated IE with Windows, consumers now expect Web-browser functionality in OSs. Indeed, as Microsoft pointed out during the trial, the Apple, Linux, and Be OSs include Web-browsing functionality, although their browsers aren't as integrated as Microsoft's.
However it turns out, the justices gave no indication about when the decision will be made. But one thing is clear after only 2 days of hearings: The Appeals Court has strong doubts about the case and the way the original court handled it, leading many to believe that the court will, at least, reverse the breakup order. Such an outcome, it now seems, is likely. As Justice Stephen Williams noted, "I don't see how this \[breakup plan\] is effective.