Legal watchers say time is of the essence after the Justice Department went on the offensive in asking a federal judge to hold Microsoft in contempt of court.
That's what legal watchers say after the Justice Department went on the offensive yesterday in asking a federal judge to hold Microsoft (MSFT) in contempt of court.
Taking a lesson from its past, the DOJ has developed into a bolder, more decisive agency when dealing with the software giant. Meanwhile, Microsoft stands a lot to gain from a protracted battle.
Added Bob Lande, a professor specializing in antitrust issues at the University of Baltimore School of Law: "Microsoft wants to delay things until they can rub Netscape out. The DOJ is aware of this and that's why they've gone back to insist that Microsoft comply with the order in a meaningful way."
The federal government's tiff with Microsoft began in the early '90s when the Federal Trade Commission began looking into a number of Microsoft licensing practices, including a requirement that PC vendors pay a royalty for each unit sold whether or not it carried an operating system made by the Redmond, Washington, company.
"By the time the [consent decree] was filed, there really wasn't anything more that could be done," says Simon Lazarus, a Washington antitrust attorney at Powell, Goldstein, Frazer, & Murphy. "This time around, [Justice] may have been motivated to move before that happened."
In the last year, Microsoft has seen a sharp increase in market share for its Internet Explorer browser. In September 1996, IE had just 8 percent of the market, while Navigator from rival Netscape enjoyed 83 percent, according to Zona Research of Redwood City, California. Some 12 months later, IE had shot up to 36 percent, while Navigator was at 62 percent.
Lawyers are quick to point out that in seeking to maintain the status quo and draw out litigation, Microsoft is no different than the vast majority of defendants locked in commercial disputes. Still, according to Jeffrey Kingston, an antitrust attorney at Brobeck, Phleger, & Harrison in San Francisco, Microsoft may have more to gain than most defendants.
Given the intense debate over whether removing the Internet code from Windows is technically feasible, it's possible that Jackson will defer to the recommendations of a software and computer law expert that has been designated a "special master" in the case. (See related story)
In a related matter, Jackson has set a scheduling hearing for tomorrow at 11 a.m. ET. The hearing will be limited to setting a briefing and hearing schedule on the government's motion.
Reuters contributed to this report.