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Tuesday, 26 September, 2000, 17:27 GMT 18:27 UK
Time on Microsoft's side
the US Supreme Court
The US Supreme Court will eventually hear the Microsoft case
By BBC News Online's Kevin Anderson in Washington

Microsoft chose the Rolling Stones song "Start Me Up" when it launched Windows 95.

Any delay is victory for Microsoft

Bob Lande, anti-trust expert
But now that the US Supreme Court's has rejected a government request to hear the landmark anti-trust case without an appeals court hearing, the software giant may be singing a different Stones song: Time is on My Side.

The highest court in the US sent the case back to the Court of Appeals, which has promised to follow an expedited schedule.

But even on such a fast track, legal experts predict that the Supreme Court's decision will add between six months to a year to the legal process. A final verdict is now unlikely to come before one-and-a-half year's time.

"Any delay is victory for Microsoft," said anti-trust expert Bob Lande.

The timing and the pace of the case will be critical, as the presidential elections in November promise at least a change in administration and possibly a change in the party that holds the White House - which could have big implications for Microsoft.

Kinder court

Bill Gates
Bill Gates' Microsoft won a favourable ruling from the appeals court in 1998
Microsoft had wanted the Court of Appeals to hear the case because it felt that it would find a friendlier audience than in Judge Thomas Penfield Jackson, who ordered that the company be split in two.

The court already handed Microsoft a victory against the government in 1998, and Mr Lande said the appeals court judges hearing the anti-trust case are a "good line-up for Microsoft."

"This will ultimately be decided by the Supreme Court," he said, but added, "the court of appeals is likely to lean towards Microsoft. These are conservative guys on that court".

And the Supreme Court relies on the lower court to focus the debate on the issue, legal experts said.

This might be one reason why the court rejected the government's request to by-pass the normal appeals process.

Appeals process

The company has also bought some more time before any "remedy" is imposed. Judge Thomas Penfield Jackson remedy was to split the company in two.

A higher court may take a different view and recommend less drastic action.

However, while the break-up has been stayed during the appeals process, Judge Thomas Penfield Jackson did order some restrictions on Microsoft's behaviour to begin immediately.

  • Give computer makers more flexibility in configuring their systems, and in selling and promoting non-Microsoft software
  • Release technical information at the same time to other software vendors as it does to its own personnel
  • Sell the Windows operating system at the same price to the top 20 computer makers
  • Charge the same price for past versions of Windows as it does for the latest version
Microsoft's next legal battle will be to seek an injunction against these measures, but at least some of them are expected to be in force during the appeals process.

Presidential politics

The case is now moving on a fast-track schedule not to the Supreme Court but through the lower courts. According to Mr Lande, the process is fast in name only.

And time is definitely Microsoft's ally, Mr Lande said.

The case deals with conduct that Microsoft committed in the past. And the record is frozen, he said.

But the remedy looks forward and deals with attempting to anticipate the market conditions.

Microsoft will argue "even if we did violate the law way back them, look at what the markets look like now," Mr Lande added.

The timing of the next steps is doubly important because this time next year, the US will have a new president, and whether that president is Democrat Al Gore or Republican George W Bush could have a major impact on the case.

If Al Gore wins, experts forecast little change in the government's prosecution of the case. If Mr Bush is the victor, the course of the trial is bound to change.

The Republican contender believes that anti-competition laws should only punish price-fixing

If elected, Mr Bush would not make immediate changes to the Justice Department, but by the middle of 2001, key appointments would most likely be in place.

However, even if Mr Bush were to completely remake the Justice Department into one much friendlier to Microsoft, the company would still have to contend with the 17 states that have also sued the company, Mr Lande said.

"But it would be much weaker than a united front," he added.

See also:

26 Sep 00 | Business
07 Jun 00 | Business
07 Jun 00 | Business
26 Apr 00 | Microsoft
02 Jun 00 | Microsoft
04 Apr 00 | Business
07 Jun 00 | Business
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