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Rocky, Monty Python make cameos at Microsoft appeal

Government attorney John Roberts seemed a bit like Rocky this week as seven appeals court judges pummeled his arguments.

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    Microsoft gaining ground at trial
    Joe Wilcox, News.com reporter, and Charles Cooper, News.com executive editor
    WASHINGTON--Toward the end of "Rocky," Sly Stallone's title character is beaten almost beyond recognition. Although the audience roots for Rocky, some fans must secretly wish he'd give up rather than continue to take the pounding.

    Watching seven federal appeals judges rip into government attorney John Roberts this week, Rocky came to mind. Roberts knew he could not concede a point the appeals judges were making, so he had to take their beating. And what a beating it was.

    Roberts had the misfortune of defending comments made by the Microsoft trial judge, Thomas Penfield Jackson. And on Tuesday, five of the appellate judges openly expressed their outrage at the comments Jackson made after the antitrust trial's conclusion last year.

    Chief Judge Harry Edwards, for one, said that Jackson's statements violated the rules of judicial conduct because they created "the appearance of bias."

    But the government lawyer knew he could not concede that this was a relevant point, arguing instead that only real bias mattered. To agree with the appeals panel would ensure that if any portion of the case were returned to the trial court, another judge would replace Jackson. So for about 20 minutes, he stood tough while the judges wailed about Jackson's improper comments and rebutted Roberts' position.

    During a quiet moment outside the courthouse, which is within eyeshot of the U.S. Capitol, Bill Kovacic discussed Roberts' performance. Kovacic, a professor at George Washington University Law School, ascended to pseudo-celebrity status during the trial and emerged as one of the most sought-after commentators on the case's progress. He saw irony in Roberts' treatment at the hands of the appellate judges.

    "It's funny because Roberts may soon be one of their members. There's a good chance Roberts could be next appointed to this appeals court. It's a strange world," Kovacic said.

    Bookends
    In some ways, Roberts' pounding served as a bookend to the two days of oral arguments heard by the U.S. District Court for the District of Columbia Circuit.

    Microsoft attorney Richard Urowsky blundered badly in the opening minutes of the first oral presentation Monday, although he got considerably less than a full-fledged beating from the appeals judges. Urowsky stumbled down a well-trodden path for Microsoft, arguing that U.S. copyright law protects the company's right to dictate the Windows opening screen, and thus supersedes antitrust law.

    Jackson did not buy that argument. Neither did the Court of Appeals. Urowsky invoked the 1976 case Gilliam v. ABC--involving the famed "Monty Python" troupe--to show that copyright law protected Windows from cosmetic alteration.

    But Judges Douglas Ginsburg and David Tatel scoffed at the contention, setting in motion a brutal barrage of questions that looked to consume Urowsky's entire 75-minute opening presentation.

    Rising over his Dell Computer laptop, Edwards rescued Urowsky and told the court he wanted to "return to threshold questions."

    Regaining his composure, Urowsky gave perhaps the performance of his career over the two-day hearing, hitting hard on points of law that resonated with many of the appellate judges. The rapport Urowsky found with the appeals judges contrasted sharply to the tension he created with Jackson. During an earlier 1997 Microsoft trial, Urowsky mastered a technique for antagonizing Jackson.

    "If there are a thousand ways to call a judge stupid or technologically inept, this guy has used them all," one of my co-workers at that time observed.

    U.S. Assistant Solicitor General Jeffrey Minear did not find a rapport similar to the one Urowsky found with the seven appeals judges. Delivering the government's most important oral argument, Minear stumbled several times. But in some ways, he couldn't be blamed.

    Minear relied on arguments made at trial by then-government lead attorney David Boies. But the theatrics Boies popularized during the trial meant little to the appellate judges. When Minear referred to an e-mail showing that Microsoft wanted to crush competitors Netscape Communications (now owned by AOL Time Warner) and Sun Microsystems, Edwards scoffed at the e-mail. At trial, the memo's introduction created one of Boies' famed Perry Mason moments.

    Shaking his head in disbelief, as he did many times during Minear's presentation, Edwards told the government lawyer that of course Microsoft wanted to beat out its competitors--as any company would. "Perceptions can't carry me," Edwards asserted.

    Some observers at the hearing asked, "Where is David Boies when the government needs him?" I wondered whether Boies might also have received a chilly reception from this cerebral panel of judges.

    Fifteen minutes of fame
    As a reporter, I found a peer's unexpected role reversal perhaps the most interesting occurrence of the two days. New Yorker reporter Ken Auletta also came to cover the oral arguments but emerged as part of the story. During the absentee hanging of Jackson, the appeals judges used Auletta's book on the trial, "World War 3.0," as a source of comments to impugn the trial judge's conduct.

    Sitting in the same row as Auletta, I noticed his composure throughout the final presentation. But after the closing session, he broke into a smile as other reporters flocked around him with questions.

    Later, outside the courthouse, I asked Auletta how he felt about fielding other reporters' questions and becoming the object of a story. He appeared somewhat uncomfortable talking about it.

    Perhaps a good reporter would rather write the story than be its subject. Maybe Auletta's fame will be short-lived and he can get back to the work he loves.

    But some fame goes on longer. After court, I walked to the Metro with Kovacic and Bob Lande, a professor at the University of Baltimore School of Law. Kovacic joked about their 15 minutes of fame, which has gone on for nearly three years.

    "You only see a case like this once in your lifetime," he said. "Antitrust academics aren't usually in great demand."

    We talked about fame and a recent "60 Minutes" profile of Boies, which highlighted some of his accomplishments after the initial Microsoft victory. Boies went on to defend Napster and join Al Gore's challenge to the presidential vote count in Florida. Interestingly, neither case went well for Boies.

    Kovacic noted where his and Lande's 15 minutes of fame had gotten them. "We're still lowly academics who use the Metro to get around," he said, waving his fare card.

    With that, we all headed into the subway.