The Iraq war understandably continues to overshadow what otherwise would be real news. Case in point: The Federal Court of Appeals for the District of Columbia will hear an appeal (Mercury News) from two technology industry groups and two states in the Microsoft antitrust settlement — and the way the court granted the appeal may suggest that Microsoft and its round-heeled pals in the U.S. Justice Department may have to answer some uncomfortable questions.
You may recall that Massachusetts and West Virginia didn’t sign off on the craven deal that rewards illegal behavior and invites an unrepentant Microsoft to keep on stifling competition. Meanwhile, the Computer & Communications Industry Association and the Software and Information Industry Association filed a separate appeal.
One prominent antitrust expert speculated to the Mercury News’ Heather Phillips that the court was hearing the case in order to “establish some law” in the antitrust arena — and that the odds were strong against any overturning of the ruling. Why not just turn down the appeal, then?
Two elements of the appeals court’s decision are at least interesting, and possibly important. First, the court will hear this appeal “”en banc,” which is to say with all of the sitting judges present; normally such cases go to a three-judge panel and then, on occasion, to the full court.
Second, the matter has been expedited — put in front of some other cases in the schedule. A November hearing is still a long time from now, but in the legal world, I’m told, this is lickety-split.
Reading these tea leaves is difficult, at best. I’m hoping the appeals judges are furious that their 2001 ruling, which unanimously found repeated lawbreaking on Microsoft’s part and returned the case to a federal judge for action to stop the lawbreaking, was effectively gutted by the Justice Department’s giveaway deal to Microsoft.
It’s also possible that the judges are happy with the way the case turned out and want to be done with it, once and for all. But again you have to ask: Why would they take the appeal if that was true?
The relatively short schedule, however, is not quick in the real world. Microsoft and its battalions of high-priced lawyers have delayed justice long enough to make any sanctions less effective than they’d have been with timely action. The monopoly is stronger than ever, and Microsoft is moving to dominate entirely new areas of communications. Delay of justice remains part of the legal strategy, and the evidence says it’s working.