by John M. Curtis
(310) 204-8700

Copyright June 10, 2000
All Rights Reserved.

tepping out of his robe—and maybe the window—U.S. District Court Judge Thomas Penfield Jackson flashed his cards before the microphones and gave a free x-ray into his private world. Sharing his views with the Wall Street Journal, Jackson conceded, "ordinarily I don’t grant interviews . . . but because of the extraordinary amount of attention given to this case, I thought it would be useful to give some sense as to who I am and what I have done. I am not the Wizard of Oz in a black robe or some omniscient wise man. [But] there obviously are a lot of questions in the mind of the public." Quite an odd disclosure from the 'impartial' man presiding over the most historic and controversial legal ruling in nearly a generation. Speaking off the cuff about Microsoft’s complaint that they weren’t given enough time, Jackson remarked, "Were the Japanese allowed to propose the terms of their own surrender?"

       Does Judge Jackson really view his role as dictating the terms of Microsoft’s surrender? Extreme prejudice is expected among litigants, certainly not from impartial judges maintaining uncompromising standards of objectivity. Painting Microsoft as intransigent now seems disingenuous when the presiding judge finally airs his true feelings. Uncorking more personal views, "untrue in one thing, untrue in everything," quipped Jackson, revealing his deep distrust of Microsoft’s arguments. "If someone lies to you once, how much else can you credit as the truth," demonstrating that Microsoft’s case truly fell on deaf ears. Rubber stamping Joel Klein’s assertion that Microsoft violated the 110 year-old Sherman Antitrust Act by using its monopoly power to harm competition and consumers, Judge Jackson swallowed the Justice Department’s case hook, line and sinker. Expecting Microsoft to plea bargain is like expecting Coca Cola turn over their secret formula.

       "A lot of people don’t think judges are supposed to do these kinds of things," said Robert H. Lande, professor of law at the University of Baltimore. Reacting quickly to Judge Jackson’s public comments, Microsoft Chairman Bill Gates remarked, "The judge apparently formed those opinions even before this case began," pointing toward the unacceptable bias perceived by Microsoft’s legal team. "I don’t know whether [public discussion] helps or hurts my case before [the appeals court]," said Judge Jackson, "They do their job and I do mine. I have enormous respect for them. Most judges take comfort in realizing that the appeals courts will review their work." Taking less comfort now is the Justice Department, whose two-year battle with Microsoft might be unraveling before their eyes. After Judge Jackson’s remarks hit the airwaves, Janet Reno’s and Joel Klein’s euphoria was suddenly transformed into disbelief and panic.

       Having the presiding judge act like a lose cannon, divulging the personal prejudice with which he arrived at his decision doesn’t help the court’s credibility. Yes, unequivocal bias by the presiding judge is ample grounds for appeal. But that’s not what the Justice Department was counting on. They hoped the Microsoft case would hinge on convincing evidence, not unwise disclosures confirming Gate’s suspicion that the judge already made up his mind before opening arguments. When you consider the government’s case, it seems like cotton candy based on specious testimony from Gate’s known enemies and reviews of controversial e-mails. Sure you can make a case for unfair trade practices. But that’s a giant leap from violating the antiquated Sherman Antitrust Act. Stretching antitrust laws to fit the copyright and patent world of high-tech only stifle innovation and punish success.

       Since AOL bought Netscape Communications, they’ve been trying to resuscitate a dead dog. What’s Microsoft supposed to do? Give away their intellectual property to envious competitors? Coke never did—and neither did GM. Giving away classified source codes and unbundling its internet browser violate Microsoft’s proprietary rights to its own intellectual property. Expecting Microsoft to unilaterally disarm and turn over its trade secrets is like handing over nuclear secrets over to the Russians. Yes, Netscape had problems marketing its browser because Microsoft already included one free with its popular Windows software. What’s Microsoft supposed to do? Tell its accounts to abandon all its software? Not too realistic when consumers expect and demand Microsoft products installed with their computers. Contrary to Penfield Jackson’s view, Gates doesn’t monopolize the PC market, the market controls Microsoft by demanding its programs. Building quality products, creating name recognition, and developing strong consumer demand doesn’t fit anyone’s definition of monopoly.

       Holding diametrically opposing views also doesn’t mean that Microsoft tried to weasel out of charges and wielded monopoly power over its competitors. Judge Jackson’s personal views that Microsoft can’t be trusted or that its executives don’t tell the truth impeaches his own credibility. After all, why should Microsoft accept the government’s party line? Sure, both sides have different perspectives, but that doesn’t mean that the government’s view is the only reasonable spin. When the presiding judge reveals unmistakable bias, it’s not too reassuring that his findings of fact will meet the test of common sense. Let’s face it, just because Janet Reno or Judge Jackson says that breaking up Microsoft will improve competition and help consumers, doesn’t mean it’s necessarily so. No government officials were responsible for creating the personal computer revolution or know what’s best for the industry.

       In the heat of battle, it’s easy to lose sight of the bigger picture regarding Judge Jackson’s landmark order. While Janet Reno and Joel Klein declare victory and celebrate today’s legal battle, it’s premature to determine the real winners and losers. Microsoft views Jackson’s order as "an unwarranted and unjustified intrusion into the software marketplace." "This ruling says to creators of intellectual property that the government can take away what you’ve created if it turns out to be too popular," said Bill Gates, rejecting the claim that the court’s ruling will improve the competitive software environment. Launching the computer revolution, Bill Gates and Microsoft didn’t receive the Nobel Prize or Congressional Medal of Honor. No, for all their heroic efforts, the government wants to tear them apart. Before government monkeys with the machinery, it’s time to appeal to cooler heads.

About the Author

John M. Curtis is editor of OnlineColumnist.com and columnist for The Los Angeles Daily Journal. He’s director of a Los Angeles think tank specializing in human behavior, health care, political research and media consultation. He’s the author of Dodging The Bullet and Operation Charisma.

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