Microsoft presents alternative facts in closing

In his closing statement yesterday, Microsoft attorney John Warden argued the government failed to prove any of its claims.

"The moment for courtroom melodrama has passed," said Warden, adding it was the government's day of reckoning.

But antitrust experts disagreed with that assessment, pointing out Microsoft put its own spin on the facts, a decidedly different set of facts than that set forth by the government.

Antitrust experts described two very different courtroom strategies: the government using Microsoft documents to show a pattern of monopolistic behavior; Microsoft arguing fine points of law and creating ambiguity about its conduct.

Many observers praised the government's strategy. "The more the government can tell the story from Microsoft's own documents, the more effective it can dispel the accusation it is acting on the behalf of Microsoft competitors," said Bill Kovacic, an antitrust attorney with George Washington University.

Microsoft took an approach of not directly disputing key pieces of the government's evidence, but instead presenting an alternative set of facts, said antitrust experts.

In his closing argument, Justice Department lead attorney David Boies attempted to show Microsoft tried to coerce Netscape Communications into dividing up the browser market.

Warden introduced videotaped testimony from Netscape founder Jim Clark that showed Microsoft had browser plans six months earlier.

"Warden's job is to create ambiguity about these episodes," said Kovacic. "If he can do that, under recent case law, ambiguity favors the defendant."

Warden peppered his closing argument with derisive adjectives that mocked the government's case. The Microsoft attorney portrayed the software maker as a spirited and successful competitor victimized by a government-imposed double standard.

"The Sherman Act is not a TV game show where once you win you have to give up your seat to another contestant," said Warden. "You get to keep on playing until someone beats you."

Much of Warden's argument revolved around competition:

• Microsoft is not a monopoly, as demonstrated by the threat posed by the Sun Microsystems-AOL-Netscape alliance.
• The threat posed by this alliance precludes any perceived wrongdoing by Microsoft.
• Sun and Netscape lobbied for the lawsuit, which is more about protecting competitors than consumers.

Competition is at the heart of the case, Warden argued. He suggested aggrieved competitors used the case to achieve in court what they couldn't in the free market.

"The government invited Microsoft competitors into court to air their grievances," Warden said.

Warden stuck mainly to areas where he could rely on existing law and where antitrust attorneys say Microsoft's defense is strongest.

Under antitrust law, Microsoft would be guilty of anticompetitive behavior if it leveraged its Windows monopoly into another market, in this case Web browsers.

Warden argued the government failed to prove the market exists and that all platform manufacturers offer Web browsers as part of the operating system. Microsoft's tying Internet Explorer to the operating system is an important related issue.

Microsoft contends an appeals court judgment in an earlier case with the government determined Internet Explorer is not a product separate from Windows.

"First the government pretends the court of appeals judgment didn't exist," said Warden. "The government [then] pretends it has no obligation to identify the tied product."

Warden also split legal hairs over the issue of distribution foreclosure, a weak area for the government, said some antitrust experts.

At issue is whether Microsoft used its Windows monopoly to cut Netscape off from ways of distributing its Navigator browser. The government alleges Microsoft used exclusionary contracts that forced PC manufacturers and Internet service providers to favor Internet Explorer over Navigator.

Under the law, Microsoft would not be at fault for harming competitors, said antitrust experts. The government must prove Microsoft's actions harmed consumers, which Warden contends it failed to do.

Warden also spent a long time on the issue of whether or not Microsoft is a monopoly. He argued the government failed to define, under existing law, the market the company allegedly dominates.

"Windows has none of the traditional hallmarks of monopoly," said Warden, who argued the government ignored AOL, Apple, IBM, and Sun as platform competitors to Windows.

Bob Lande, a professor with the University of Baltimore School of Law, scoffed at the assertion Windows is not a monopoly. "The argument made Microsoft look foolish," he said.

"I think it shows they operate in their own little world, and they don't travel outside that world very much," said Lande. "But counsel should have known better than to spend, what, 18 minutes on this ridiculous point."

In morning remarks, Boies referred to Microsoft documents that show the company for a decade maintained more than 90 percent operating system market share on Intel-based PCs.

Warden's closing remarks confused some courtroom observers, who said they defied logic. But several antitrust experts said Microsoft is clinging to the strictest application of antitrust law, assuming the case will go on to appeal.

"It's understandable Microsoft believes the court of appeals approach is the one that will prevail," said Kovacic.

For now, the case is in the hands of Jackson, who must determine the facts and render some decision based on his interpretation of antitrust law.

Jackson has favored settlement, and he could wait a month or more before rendering a preliminary judgment, giving the parties time to reach some kind of agreement.