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Former judge defends his bid to break up Microsoft

Five years later, Thomas Penfield Jackson also defends his "creativity" in appointing Redmond critic Larry Lessig as a special master.

WASHINGTON--Former U.S. District Judge Thomas Penfield Jackson, who savaged Microsoft from the bench before being removed from the case for his wayward conduct, still thinks that breaking up the software behemoth was the right thing to do.

Thomas Penfield Jackson
Thomas Penfield

In a speech here Tuesday before the American Antitrust Institute, Jackson said that the "Microsoft persona I had been shown throughout the trial was one of militant defiance, unapologetic for its past behavior and determined to continue as before."

"Windows is an operating system monopoly, and the company's business strategy was to leverage Windows to achieve a comparable dominion of all software markets," Jackson said. "Nothing has changed, to my observation, in the five years that have elapsed since my decision...Microsoft has won the browser war in the United States. Netscape Navigator, if it is still available at all, has only a small fraction of the browser market."

In June 2000, Jackson ruled that Microsoft should be split into two companies: one that would sell office software and the browser, and another that would be responsible for everything else.

Even at the time the trial began, Jackson had become unusually vocal in his public and private criticisms of Microsoft, which had been sued by the U.S. Justice Department and state attorneys general on antitrust charges. Jackson likened Microsoft executives to gangland killers and stubborn mules who should be walloped with a 2-by-4, and appointed Microsoft critic Larry Lessig as a special master in the case. A special master is a neutral expert with quasi-judicial powers who evaluates factual disputes.

But what alarmed the U.S. Court of Appeals for the D.C. Circuit most was Jackson's habit of inviting favored reporters into his chambers for private conversations that involved trash-talking about the world's most famous antitrust defendant while court proceedings were under way. "The system would be a sham if all judges went around doing this," Chief Judge Harry Edwards warned at the time.

As a result, Jackson was given the boot from the case. The D.C. circuit court ruled unanimously that Jackson "seriously tainted the proceedings," and a new judge, Colleen Kollar-Kotelly, was appointed. The appeals court also overruled Jackson's decision to carve up Microsoft, which led to the case being settled in November 2001.

Jackson, who is now an attorney at the Jackson and Campbell firm, used Tuesday's appearance to fire back at the appeals court. "When the reversal of my consent-decree case rulings on the contempt petition finally came down, it became apparent to me that I faced a very real prospect of reliving the 'trench warfare' experiences of my colleagues who had handled the AT&T and the IBM antitrust cases."

He also complained that his "creativity" in appointing Lessig was not seen favorably: "Again my creativity was unappreciated by the court of appeals--the consent decree was clear enough to them; a special master was unnecessary."