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Friday, 12 January, 2001, 13:57 GMT
Microsoft still faces battle
US Supreme Court
States vow to take Microsoft case to the Supreme Court
By BBC NewsOnline's Kevin Anderson in Washington

Watchers of the US government's case against Microsoft might have thought the software giant cheered when George W Bush won the presidency.

But even if Mr Bush were to completely abandon the case, which few legal experts expect the administration will do, that theory has one flaw.

Microsoft still will have to contend with the attorneys general from 19 states, and the state attorney generals have pledged to take the case all the way to the Supreme Court if necessary.

The short term

Many legal experts believe that very little can be expected to change with respect to the Microsoft case in the short term

"They won't have their attorney general in place for some time, and they won't have their chief of the anti-trust division in place for some time." to Stephen Paul Mahinka, anti-trust manager for the Washington DC law firm Morgan, Lewis and Bockius.

In as much, it would be very difficult for the Bush administration to change how the case is argued in front of the appeals court in February, he said.

But Mr Mahinka also believes that the appeals court decision will in some way weaken the government's case. "As with most appeals, each side will win and lose a bit," he said.

Then "the government and Microsoft have the potential to settle the case before each side appeals to the Supreme Court," he said.

And by that time, President-elect Bush will have had time to install his own people in the Justice Department, and he says that a settlement is much more likely under a Bush administration than a "scorched earth prosecution."

States vow to fight on

But this case is not simply a court battle between Microsoft and the federal government.

We are committed to staying the course. We will go to the Supreme Court.

Connecticut Attorney General Richard Blumenthal

Attorneys general from 19 states are also brought the case against the software giant, and they have already said that they are willing to pursue the case all the way to the Supreme Court even if the federal government will not.

"We are committed to staying the course," said Connecticut Attorney General Richard Blumenthal, adding, "We will go to the Supreme Court."

They have not met with Mr Bush or any representatives from his administration, Mr Blumenthal said. "Their attorney general still has to be confirmed. Any sort of meeting would be premature," he said.

This is not a question about party or ideology. It is a question of enforcing the law.

Iowa Attorney General Tom Miller

But the attorneys general are hopeful that the new administration will continue the partnership between the states and the federal government, said Iowa Attorney General Tom Miller.

"This is not a question about party or ideology. It is a question of enforcing the law," Mr Miller said.

Mr Miller believes that the break plan ordered by Judge Thomas Penfield Jackson "would effectively change how Microsoft uses its monopoly in the marketplace."

But the states are open to renewed settlement talks, and they realise that Microsoft would most likely not agree to the break up.

But they are also adamant that "Microsoft would have to fundamentally change the way it uses its monopoly in the marketplace" before the states would agree to any settlement.

And the states could choose to pursue the case further even if the federal government settled with Microsoft, Mr Miller said.

Break up unlikely

Mr Mahinka sees the possibility of the case being settled between the Microsoft and the federal government and a few states, with some states will try to appeal to the Supreme Court.

But he adds: "The Supreme Court is not stupid. They know the plaintiffs are weakened with the federal government and other states dropping out."

And the High Court will be unlikely to overturn the settlement in favour of the breaking up the company, which he likened to a death penalty for a company.

Open-source advocate outraged

Columbia law school professor Eben Moglen said, "I will bet you any amount of money at long odds that (Mr Bush) will drop the case."

He added, "Without the federal government's clout and energy, it will be difficult for the states to maintain the case."

For the government to give up on the most important anti-trust case in three decades leaves our democracy weakened.

Free Software Foundation lawyer Eben Moglen

Mr Moglen is also a lawyer for the Free Software Foundation, which raises money for the development of free software. The open source operating system Linux has dramatically raised the profile of free software in the last few years.

Mr Moglen is no fan of Microsoft and says that the company has lowered people's expectations for computers, leading them to believe that all computers crash three times a day.

He added, "for the government to give up on the most important anti-trust case in three decades leaves our democracy weakened."

See also:

28 Dec 00 | Review
Microsoft's bruising year
07 Jun 00 | Business
Will splitting up Microsoft work?
30 Aug 00 | Business
Microsoft faces class action lawsuit
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