By Rachel Chalmers
Microsoft Corp president Steve Ballmer says the company won’t compromise on its ability to innovate products. In an editorial for Tuesday’s Wall Street Journal, Ballmer wrote: We remain committed to solving this dispute in a fair and responsible way. But we cannot compromise on the government’s demands that Microsoft essentially stop listening to the marketplace and cease innovating its products. He said that if Microsoft agreed to unbundle Internet Explorer from Windows, it would amount to ignoring: the most important recent development in computing – the internet. Most telling, though, was Ballmer’s list of viable competitors to Microsoft, which shows where the company’s senior management believes new threats lie: with Linux, with the continuing growth of America Online Inc and with the increasing availability of venture capital for new internet ventures.
Meanwhile the New York Law Journal prompted fresh speculation by drawing attention to a little-known law called the Antitrust Expediting Act. Until now, commentators have tended to assume one of two outcomes to the case: a settlement, or a drawn-out process of appeal. The NYLJ claims the Department of Justice could invoke the Expediting Act to seek immediate review at the US Supreme Court. That would effectively bypass federal appeals court judges, denying Microsoft a victory on appeal like the one it claimed in June 1998. The Expediting Act also prevents Microsoft from appealing until after Judge Jackson has proposed remedies to the company’s anti-competitive conduct.
Will the DoJ take advantage of the Expediting Act? It’s certainly likely to try, says Silicon Valley attorney Rich Gray, who has followed the antitrust trial closely. He adds, though, that the prospects of bypassing the court of appeals shouldn’t be overplayed: The Supreme Court can if it so desires, send the case back down to the Court of Appeals. It’s always hard to predict the actions of nine people who have life tenure, but I would hope they would appreciate the importance of the case by giving it their full attention. Gray believes that the real advantage of the Expediting Act to the DoJ is its potential to hasten the legal process to approximate internet time. It would help the DoJ by speeding the results of the case, he concludes, so that the industry hasn’t changed too much by the time the remedies go into effect.
