Microsoft’s steps to appeal the
antitrust verdict handed down Monday are unlikely to result in the ruling
being overturned, according to a former U.S. Circuit Court of Appeals judge.
Robert Bork, best known for his consideration for the Supreme Court during
the Reagan administration, handed down his own opinion on the issue, stating
that Microsoft’s (MSFT)
chances of getting the decision reversed are slim. The case against the
giant computer firm is too great to warrant a reverse decision, he
explained.
“Even if the Court of Appeals disagreed with Judge Jackson on the Section 1
tying claim, it would have almost no impact on the
case. The important point is that this is a violation of Section 2 —
monopolization and attempted monopolization,” Bork said in a press
conference this week.
In a ruling issued late Monday, U.S. District Judge Thomas Penfield Jackson
wrote Microsoft used its monopoly power to block rivals from marketing their
own operating systems or emerging technologies, such as Java, that
threatened Microsoft’s
market dominance. He also said Microsoft violated the Sherman Antitrust Act
by unlawfully linking Internet
Explorer to Windows.
Bork went on to say that the software industry is like any other that faces
monopoly issues, and that the litigation is a better alternative to
government regulations of the industry.
“Without antitrust law, the only thing that would control unbridled
monopolization in the software industry would be government
regulation,” he said. “Antitrust enforcement is clearly preferable to
regulation. In this case all the court did was apply conventional antitrust
principles to a new industry.”
Bork did not recommend a solution, but did point out that shareholders have
benefited from other breakups resulting from antitrust enforcement.
“Maybe Microsoft shareholders should be rooting for the government at this
point,” he said.
In a case that is anything but typical, Microsoft’s appeal may skip the
appellate court entirely and head directly for the U.S. Supreme Court,
according to published reports. Judge Jackson said that in order to speed up
the judicial process, he may suggest bypassing an appellate court to speed
resolution of the case. That could bring the case to the Supreme Court by
the summer.
