Lawyers representing Microsoft Corporation and the U.S. Department of Justice (DOJ) met before Judge Thomas Penfield Jackson Tuesday, the last such meeting before the judge issues his conclusions of law next month. But Microsoft's reluctance to settle the case didn't serve them well in court, as the judge had some predictably harsh and damning words for the company, which he described as a modern-day Standard Oil. John D. Rockefeller's Standard Oil, of course, was broken up into 30 separate companies in 1911. The company's monopoly was also the impetus for the Sherman antitrust act with which Microsoft is being accused of violating. "Mr. Rockefeller had (absolute) control over his oil," Jackson told Microsoft legal counsel John Warden. "I don't really see a distinction \[between Windows today and Rockefeller's oil monopoly\]."
When you consider Jackson's earlier findings of fact along with his comments this week, there can be little doubt that the judge will be finding Microsoft guilty of serious violations of U.S. antitrust law. Jackson ruled in November that Microsoft was a monopoly and that it used its market power to harm competitors, partners, and consumers illegally.
For its part, Microsoft predictably defended its right to compete and improve its products.
"We believe the law supports Microsoft's commitment to compete zealously by improving our products and offering consumers greater value," said Microsoft lead counsel Bill Neukom. "We have learned in this country that vigorous competition is what delivers the best products and prices to consumers."
But Microsoft also briefly brought forward a new defense, that it was simply protecting its Windows copyright. This never came up during the trial, raising the judge's ire.
"The holder of a valid copyright is entitled to protect it," Warden told the judge, referring to charges that his company had prevented PC makers from removing Internet Explorer from the Windows desktop.
"I have two problems with your defense," Jackson responded. "What evidence did you give me with respect to what is protected by copyright?"
"We don't argue that the copyright laws trump the antitrust laws, but the antitrust laws don't trump the copyright laws," Warden said.
"I'm not so sure of that," Jackson retorted. "What you're saying is 'If you license my operating system, you've also got to license my browser.'"
Microsoft's copyright defense notwithstanding, the company has a problem. According to sources close to the case, a settlement is no closer now than its ever been and, if Microsoft's own spokespeople are to be believed, the company has no desire to open up the source code to Windows, widely believed to be one of the key ways the company could avoid a federally mandated breakup. With Jackson's conclusions of law expected sometime March, there isn't a lot of time left