"Microsoft has shown enormous agility in getting around the law and prior consent decrees, and they seem to have no respect" for the law, Bork said in a telephone conference with reporters. "I don't think trying to control their conduct by a decree is likely to be enough."
The conservative former judge from the U.S. Court of Appeals for the District of Columbia was referring to a 1995 consent decree Microsoft signed with the government to settle earlier antitrust claims. In 1997 the Justice Department accused Microsoft of violating the settlement and asked a federal judge to fine the company $1 million for every day it failed to comply.
A Microsoft spokesman called Bork's suggestion that severe remedies are a serious option a "pipe dream" and noted that the same appeals court where Bork used to sit ruled Microsoft did not violate the consent decree.
"It's very unfortunate that anyone would make such wild accusations that are clearly not supported by the facts," said spokesman Mark Murray, adding that "the only people who are supporting so-called structural remedies these days are people who get paid by our competitors to do so."
Bork's comments come less than a week before the expected resumption of trial in the most recent government action against Microsoft. In it, the DOJ and 19 states accuse Microsoft of using its alleged monopoly in operating systems to crush competition in the Internet arena.
Should U.S. District Judge Thomas Penfield Jackson find that Microsoft violated antitrust laws, the next step would be to determine what remedy is necessary to restore competition. Bork earlier called for dividing Microsoft into three "Baby Bills," similar to the way in which AT&T was broken up.
Today's telephone conference was sponsored by ProComp, a lobbying group founded by Netscape Communications, Sun Microsystems, and other Microsoft rivals.
Bork, once a fierce critic of the nation's antitrust laws, has become a major champion of using them against Microsoft since being hired last year by ProComp. At today's 25-minute conference, he also referred to a column in the most recent issue of Newsweek in which Microsoft chief executive Bill Gates says the personal computer "will remain the primary computing tool" despite America Online's recent $10 billion acquisition of Netscape.
Microsoft attorneys have repeatedly argued that the merger fundamentally changes the competitive landscape.
"Mr. Gates has continued to show his genius for undercutting his lawyers," Bork said, adding that Gates's comments prove ProComp's contention that the merger is entirely irrelevant to the government's case.
"I don't think anything has changed" as a result of the merger, Bork added. "It doesn't even remotely begin to change the operating system monopoly that Microsoft has."
Jackson in December said that the merger "could very well have some immediate effect on the market" being contemplated in the trial.
Said Microsoft's Murray, "The government and our competitors seem to be sticking their heads in the sand and trying to ignore all the changes that are occurring in the software industry that make this case irrelevant."