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Thursday, 7 March, 2002, 05:38 GMT
Microsoft critics and supporters spar
John Warden
Microsoft's John Warden addresses the judge
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By Kevin Anderson
BBC News Online Washington business reporter
Microsoft has been battling anti-trust regulators in the US for much of the last decade, and now it wants to make up with government trustbusters and get on the business of being the largest software company on the planet.

Litigation is not good for the soul of either an individual or a corporation

John Warden, Microsoft attorney
Anti-trust cases have little of the courtroom drama that is the staple of primetime television, and the only visions a la Ally McBeal will likely come from reporters somehow nodding off in the designed-for-discomfort benches.

But lawyers don't get paid hundreds an hour without showing some signs of rhetorical flourish, and buried in the legalese and even more arcane software jargon were the rare gems designed to entertain and put a fine point on their arguments.

Microsoft's man

Microsoft's lawyer, John Warden, is an earthy figure with a bit a southern twang who peppers his folksy zingers with Latinate legalese.

Saying, "Litigation is not good for the soul of either an individual or a corporation," Mr Warden explained that the software giant was eager to settle the case because "Microsoft wanted to achieve a degree of certainty about the market going forward."

The company also said that it wanted to end its confrontational relationship with anti-trust authorities.

But Mr Warden has also displayed some of the fire and fervour that has fuelled Microsoft's battle with those anti-trust authorities over the last decade.

At one point, he characterised comments criticising the settlement as "whines" and said critics sought "a grab bag of personal advantages for Microsoft competitors".

"These people would redesign Microsoft products, confiscate Microsoft intellectual property and extend of the scope of the decree to markets not in this case or are in the infancy of innovation," he said with more than a little emotion.

It led Eric Green, who mediated the settlement, to whisper to a colleague in the courtroom: "He's winding himself up."

In Microsoft's corner

But the real fireworks came in the afternoon, as lawyers representing a handful of the thousands businesses, groups and individuals who commented on the proposed settlement spoke to the merits or flaws of the plan.
Microsoft co-founder Bill Gates
Bill Gates and Co want to put the case and their anti-trust troubles behind them

First up, Gene Schaerr, speaking for the pro-Microsoft - and partially Microsoft-funded - trade group Association for Competitive Technology.

He likened the tactics of Microsoft's competitors to chickens who turn on a wounded and weak bird in their midst.

"Other chickens pick away at the (wounded) chicken until it can feed no longer feed," he said, saying the Microsoft's competitors wanted to peck away at the software giant.

But he warned that his group had calculated the harsher remedies and a Balkanisation of the Windows operating system could cost consumers and the computer industry some $80bn.

Microsoft's detractors

But Judge Colleen Collar-Kotelly also heard from critics of the software giant.

She was concerned that Microsoft was not as forthcoming as required by law about its contacts with the Department of Justice and Congress during the settlement process, and a lawyer for the American Anti-Trust Institute drove that point home.
Bill Neukom
Microsoft's legal team including General Counsel Bill Neukom squirmed during Robert Bork's criticism

A law called the Tunney Act governs the current hearings, and it requires a review of anti-trust settlements between the government and private companies to ensure that they are in the public interest.

The law also stipulates that contacts between the company settling and members of the government be disclosed.

AAI's lawyer said Microsoft's failure to disclose its contacts with the Justice Department "open a hole in the Tunney Act big enough to drive an army of lobbyists through, and Microsoft certainly has an army of lobbyists".

Microsoft legal team squirmed in their seats, flushed with what seemed to be embarrassment and anger, as ProComp's Robert Bork called the settlement completely deficient.

Mr Bork is a darling of the conservative legal set and as an anti-trust scholar was thought to advocate a light touch from government regulators.

That made it all the more shocking to conservatives when he was retained by Netscape in their battle against Microsoft.
Microsoft's newest OS Windows XP
Microsoft's critics have focussed on new features in Windows XP

But there he stood, calling for much stronger limits on Microsoft's market behaviour on behalf of ProComp, a trade group of Bill Gate's competitors who would like nothing more than to see Microsoft defanged.

Microsoft has steadfastly maintained that it did nothing wrong but compete fiercely in a fiercely competitive market.

Mr Bork painted quite a different picture and said that Microsoft's anti-competitive behaviours had illegally harmed both its competitors and consumers.

"You don't have to assume harm because there on the floor is the corpse of Netscape's browser," he said.

Wait for the ruling

But after all of the calls from Microsoft and the US government for quick approval of the settlement, don't expect this case to go quickly.

The judge says she has a lot to digest. As the hearing came to a close, Judge Kollar-Kotelly said, "This is a very important and complex case to which I am going to give careful and thoughtful attention."

A decision could be weeks or even months away, and nine states who did not sign onto the settlement still have yet to argue for stiffer penalties.

Those hearings are set to begin next week, but Microsoft has asked for a delay to examine recent changes the states made in their remedy request.

See also:

06 Mar 02 | Business
Microsoft presses for settlement
03 Nov 01 | Business
Microsoft continues aggressive ways
28 Feb 02 | Business
Microsoft and US refine settlement
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