Intemperance Makes the Suit Look Bad
March 7, 2001
In the past few weeks, I've been asked so often about
the Microsoft appeal that I've made it the topic for
today's column. As the title suggests, I believe Judge
Jackson "barfed" on his good suit. "Barf" is a term of art,
of course, one the learned profession uses to refer to a
witness making intemperate remarks on the stand: they can't
control their mouth, they volunteer damaging information,
they barf all over the suit.
It is strange to see someone so versed in the law and
jurisprudence of our beloved system behave so imprudently.
What passes for mere incaution from a witness who is either
naïve or too clever for his own good is something quite
different when it comes to a federal judge.
Intemperance is just the symptom -- one wonders what the
actual malady is. Hubris comes to mind, the inebriation that
comes from a sense of invincibility. This happens to people in
power, I'm told. The Greeks, besides inventing the word hubris,
liked to say that those the gods want to punish they render
insane.
What did Judge Jackson do? After hearing the Microsoft case,
finding Microsoft guilty of abusing its monopoly position, and
recommending breaking Microsoft in two, Judge Jackson gave
interviews and speeches, publicly and repeatedly disparaging
the defendant. In doing so he broke a very basic rule, not an
arcane statute of appellate law. Our system works on the premise
of fairness; defendants must get a fair trial or the system
loses credibility. Judge Jackson is free to like Microsoft or
Bill Gates, or not. But he is not free to make comments that
do more than raise the issue of his impartiality.
During the trial, he made no mystery of his annoyance with
the company's executives, witnesses, and demonstrations. At
the time, it seemed acceptable to be annoyed at a reluctant
witness.
"Did you send this e-mail."
"No."
"Who did?"
"My computer. . ."
This is the kind of testimony likely to elicit some displeasure.
But now, Microsoft lawyers have a right, a duty even, to go back
over the entire transcript, point at the many instances of
high-handedness exhibited by the magistrate, join them to the
flow of post-trial disparagement, and claim Judge Jackson did
not give them a fair trial.
Of course, my position is a lay person's perspective, not
that of an expert in this or any area of the law. But I feel
it would be terribly ironic if Microsoft won, after all,
because Judge Jackson barfed all over Joel Klein's suit.
But that's not the full extent of problems with the suit.
As I've written before, there is the Explorer integration
problem. We can think that Microsoft integrated Explorer with
Windows in an effort to kill Netscape. We can state that
they made the integration arbitrarily inextricable in order
to defeat attempts to remove Explorer and replace it with a
competitor. But these are only opinions, as opposed to clear,
unambiguous facts, especially if Judge Jackson's Findings
of Fact are no longer airtight.
I'm still mystified that the DOJ didn't choose to try another
simpler, black and white issue. You can't buy a PC with Windows
and another OS installed at the factory, on the hard disk, by
the OEM. Let's say Linux, to avoid claims that I'm panning gold
for my church -- why not Linux next to Windows on a Compaq, HP,
or Dell PC? Is it because Linux is expensive? No. Unpopular?
No. We've known the answer for a while and we told the DOJ when
they asked. The Windows license obligates the OEM to use the
MS boot loader/manager. Descend to the license for the boot
loader: it says thou shalt not use said loader for anything but
the OS from thy maker, Microsoft. You can boot Windows 2000,
Windows Me, DOS, Windows 95, but no alien systems are permitted.
QED no Linux or BeOS next to Windows as a factory load. Of
course, you can load it yourself. Perhaps one remedy Judge
Jackson forgot was forcing Microsoft to offer Windows on a set
of floppies to be installed by the end user, not factory loaded
on the hard disk.
Why didn't the DOJ pursue this clear-cut case of abuse of a
monopoly situation? Explanations such as the PR/political value
of Netscape come to mind.
In any event, as my atheist friend likes to say, there must be a
god after all, and she loves Bill.
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