Microsoft trial a battle of public favor

Unlike other legal areas, where judges or juries must ignore outside influences, antitrust law is intertwined with questions of public policy. As a result, legal and political experts say, antitrust cases are inevitably far more closely linked to what the public thinks and to the prevailing political winds than other types of courtroom issues.

And in the Microsoft trial, taking place in a presidential election year, the campaign for public opinion on both sides is without precedent.

"No other antitrust case has been so extensively tried outside of the courtroom than the Microsoft case," said George Washington University Law School professor Bill Kovacic. "The broader public audiences do matter."

In the last three weeks, as settlement talks in Chicago appeared to falter, the number of leaks has increased. Among the leaks: a proposal to break up Microsoft, reports of some states at odds with the Justice Department's hard line and yesterday's early brief filing by the trade group Association for Competitive Technology. The group used the filing to boast of the legal luminaries backing the document.

Meanwhile, some legal experts said there is no better than a 50-50 chance that the government and Microsoft can settle before U.S. District Judge Thomas Penfield Jackson issues his ruling.

With the prospect of settlement less likely and the wide expectation that Jackson will rule against the software giant, the issue of remedies--the legal term for ways to address Microsoft's alleged illegal behavior--becomes more important. By rallying the public through media leaks, both sides could stake out positions affecting societal opinion and those who make policy as the case reaches its final stage.

"If you're planning on asking for a dramatic remedy, you have to prepare people for this," Kovacic said. "And you have to begin developing an awareness of the consequences so you don't have a political backlash."

The government began the leak warfare on Jan. 12 with news that a proposal to break up Microsoft had been made to Judge Richard Posner. Posner, who heads the U.S. Court of Appeals for the Seventh Circuit, has been overseeing the settlement talks.

University of Baltimore School of Law professor Bob Lande speculated that the government had leaked the proposal in hopes of sending a message to Microsoft and Jackson that it had reached a consensus.

In the following weeks, other news leaked to the media depicted some states at odds with the Justice Department (DOJ) over how harsh the remedies should be. The question of whether to break up the company appeared to be a key issue, contradicting earlier reports of a unified front between the DOJ and the states.

"In terms of public pressure, the most vulnerable to the media and the pressure of public opinion is not the Justice Department or Microsoft. It is the states," Lande said. "Some of their attorneys general are elected, and some of them are very easy to influence compared to the feds."

The trial from the onset was a drama unfolding in the press, with both sides playing a game of media brinksmanship. The Justice Department and the 19 states, for example, orchestrated a huge press conference in Washington when they brought the suit against Microsoft. Once the trial started, both sides briefed the media daily.

"For an antitrust case to have a daily briefing outside of the courthouse--in which the contestants show up everyday before a forest of microphones to spell out their case--doesn't have a parallel," Kovacic said.

Until now, the media circus surrounding the case has had only limited impact on its outcome, but that could change dramatically as the remedy phase quickly approaches, said Lande.

As the remedy phase draws closer and the potential effects of breaking up Microsoft loom larger, the Redmond, Wash.-based software maker's message is beginning to strike a cord with the public, Lande said. The law professor sees a coordinated effort on the part of Microsoft of rallying support around the idea that a breakup would mean government regulation of the software industry and devastation to a leading technology stock.

"Microsoft's strategy could be to create discord among the states, to make them spend time fighting one another and reassessing their position," Lande said. "If the states no longer have a united front and are no longer united with the feds, that's a significant impediment to the efforts to be aggressive towards Microsoft."

The DOJ is much less vulnerable to the effects of public opinion, because of its political allies on Capitol Hill.

"For the government, it is important to have a political base that says you do what you have to do to make this case come out the right way," Kovacic said. "In many ways, Sen. Orrin Hatch has provided that assurance to (U.S. assistant attorney general) Joel Klein on Capitol Hill."

Hatch (R.-Utah), who heads the Senate Judiciary Committee, has been a vocal critic of Microsoft and ally supporting the government's case.

One of the most dramatic leaks occurred yesterday, when the Association for Competitive Technology (ACT) tipped off the Associated Press about the filing of an Amicus brief. The "friend of court" brief was not due until today, but the trade group, which has close ties to Microsoft, used the leak to draw attention to the bigwigs backing the document. ACT went so far as putting a link on its Web site back to the AP story.

"It was a smart move on their part, and a good way of drawing attention to their brief," said Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley. By filing ahead of three other briefs due today, ACT used the leak to create positive press for Microsoft

Another trade group, the Software & Information Industry Association, filed a brief today on behalf of the Justice Department. "One way in which the brief is effective is using stories in the press to show a pattern of misbehavior on the part of Microsoft," Gray said.

This use of the press could affect Jackson as he drafts his conclusions of law, essentially his ruling, expected as early as March. Jackson clearly follows the press reports about the trial. One reason Jackson requested settlement talks was media reports about "divergent views" in the government camp.

Not all legal experts believe the leaks and their influence on public opinion or public policy makers would have any dramatic outcome on the case.

"I think the media efforts may be a good thing to do in public relations, but I don't think it's going to have any influence on Jackson," Gray said. "Jackson has demonstrated that the only 'public' opinion he is concerned with is that of the appellate court. I don't believe his position will change one iota."

Kovacic isn't so sure. A last-minute rally by Microsoft could generate enough public outcry to force the government to take a softer approach to remedies, he said.