Speculation runs wild on Microsoft case
May 21, 1998
Web posted at: 3:45PM EDT
by Brian McWilliams
-- While much of the government's evidence against Microsoft is under
seal, the complaint filed Monday by the U.S. Department of Justice provided
excerpts of potentially damaging internal Microsoft documents. At a
press conference, Assistant Attorney General Joel Klein read from a
February 24, 1997, memo by Microsoft's Christian Wildfeuer.
According to Klein, "The evidence ... demonstrates that Microsoft's
use of exclusionary and predatory practices was not designed to help
consumers, but rather to make sure that Microsoft could crush its competitors.
As one key Microsoft executive [Wildfeuer] candidly stated, 'It seems
clear that it will be very hard to increase our browser market share
on the merits of our browser alone. It will be more important to leverage
Windows to make people use our browser instead of Navigator'."
Also cited in the Justice Department's complaint are internal memos
by Microsoft executives Jim Allchin, Brad Chase, and Kumar Mehta.
Legal experts are saying it appears the government has a strong case
and is likely to prevail in court.
"[I'm] somewhat surprised by how strong the government's case looks,"
says John Briggs, head of the antitrust practice for the Washington
DC firm Howrey & Simon. "At some point Microsoft officials are going
to have to take the stand and explain why the jury should not believe
the contemporaneous document but should believe some other explanation
of it offered a year or two later. And that is a hard task for even
the best lawyers."
Briggs adds that the government will have a harder time persuading
the judge to agree with one of its proposed solutions for remedying
the situation: "It's hard for me to imagine that the court would prohibit
Microsoft from distributing a bundled version of its operating system
and Internet Explorer unless Microsoft also put Netscape's browser on
the OEM's machine. That just doesn't strike me as realistic--it would
be, if not unprecedented, very unusual."
Indeed, in full-page ads running in newspapers across the country,
Microsoft has compared the Justice Department's request to forcing Coca-Cola
to distribute Pepsi.
But Ed Black, an attorney and president of the Computer & Communications
Industry Association, says that there are problems with Microsoft's
As Black describes it, "Imagine that Coke also controlled 90 percent
of the grocery store outlets, and they said we're not going to let Pepsi,
7-Up, or anybody else have any shelf space. It's only going to be Coke
on the grocery store shelves. That's the metaphor. In that kind of a
setting, [forcing Coke to distribute Pepsi would be] ... getting a reasonable
shot for their customers to look at, to have exposure to, to have the
option to choose their product. There's nothing out there that says
the consumer has to pick Netscape as his browser. It's saying we're
going to make sure there's some shelf space so he gets to look at and
have it as an option."
Nonetheless, Richard Gray, of high-tech law firm Bergeson, Eliopoulos,
Grady & Gray, believes Microsoft's courtroom strategy will be to prove
that its browser bundling ultimately benefits consumers.
"First they're going to dispute that they have monopoly power in the
desktop operating system," says Gray. "I think that fight they're going
to lose. Then what they're going to say is even if we do have monopoly
power in the operating system marketplace, all we're doing is bringing
new functionality into the operating system software, and that's a consumer
benefit, that's a plus. There's nothing anticompetitive about that.
It's simply increasing consumer value by giving them more bang for their