Microsoft must lie in legal bed it's made

We're back to a temporary draw in that incredibly long-running game, the antitrust trial brought by the United States Department of Justice (DOJ) against software company Microsoft.

This week, the US Supreme Court turned down Microsoft's request to have the complete findings of reprimanded US district judge Thomas Penfield Jackson thrown out.

Earlier this year, an appeals' court had removed Judge Jackson from any further phase of the trial after deciding his comments after the trial and his penchant for giving secret interviews to journalists were not acceptable behaviour. It also rejected his proposal that the company be split apart.

From the comments emanating from Microsoft spokespersons after that ruling, you'd have thought the appeals' court had said Microsoft's behaviour was exemplary and that the company was a delightful and blameless player on the corporate field of play. Its message: we have been vindicated.

No such thing had happened at all. While giving Judge Jackson an almighty slap on the hand and a rather embarrassing dressing down, the court agreed with his ruling that Microsoft had violated federal antitrust laws. In general, said the appeals' court, an incredibly powerful and monopolistic Microsoft had acted badly towards competitors and many of its customers.

Not that there's necessarily anything wrong or illegal about being a monopoly in the US, it's just that you have to be a nice monopoly.

Nonetheless, the details of the appeals' court ruling, and the subsequent changing of the guard to a more business-friendly Bush White House, meant that the new, kinder, gentler DOJ decided a few weeks ago not to pursue the break-up of the company. This was greeted with frustration and outrage on some fronts.

But few realists can have believed the US would actually chop up such an iconic, if controversial, company. Or that Microsoft would not have voluntarily come up with some more beneficial alternative, as Bell Telephone did before it when threatened with the axe (its "baby Bells" brought even more rewards to investors than the monolith parent).

The cold shoulder from the Supreme Court means no decision from on high favouring Microsoft will be delivered by this "last chance saloon" court - you can't appeal the Supremes. So we're back to a face-off, this time under Judge Colleen Kollar-Kotelly.

She has made it clear she wants all sides to work toward a settlement, and soon. If they continue to squabble, she'll hold hearings in March and decide what sanctions to impose on Microsoft.

It's hard to imagine that Microsoft will not want to work out an agreement and finish this whole business. In a poor economy, having a threatening court case hanging over its head creates further uncertainty that wary investors, not to mention customers, will not like.

Certainly, Microsoft has plenty on its plate without the headache of a court case and an uncertain future. The company is at the beginning of a major push for its release of a completely revamped operating system, Windows XP, which many in the tech industry hope will jump-start consumers and businesses into a buying phase again. It is also trying to weave operating system and services into a dominating internet presence through its .Net strategy.

It has new territories it would like to conquer, such as the e-book space with its eReader software; the handheld arena with a scaled-down version of Windows; and software and services it could offer through a prototype, small "Web tablet" computer it hopes manufacturers will take into mass production next year.

And, on the defensive side, it knows it must address weaknesses in its server software after many security problems led influential industry analyst Gartner to recommend companies to use products other than Microsoft's. Bitter arch-rival Sun has been making hay with that finding ever since.

Of course, therein lies the rub for Microsoft as it seeks a way towards an agreeable settlement. It must convince the DOJ and the court, despite these indications, that it is moving towards an aggressive domination in other areas, such as the internet and handheld market, it is not using its existing market strength to shoehorn itself into these newer areas.

And set against all this is the question of what consumers want. Like it or not - and many Microsoft haters very vocally do not - consumers have chosen over time to vote with their wallets for Microsoft.

The reality is that many feel Microsoft's expansive presence in the technology sector means various software programs work together more easily, mainly because developers have to make them mesh. Most people are not techies and see this as a huge advantage.

Other operating system choices are there: Unix, Linux and Apple's Macintosh. Once the Mac was the clear home-market leader but lost that place because it insisted on charging far more than Microsoft-based systems for years.

Unix remains for techies, while installing and running Linux is a challenge the vast majority of consumers clearly do not care to accept (although it grows progressively more user-friendly and is establishing a serious footprint in business).

But the mass market wants Microsoft - even with its frustrating glitches, crashes and system conflicts.

The consumer's desire to buy Microsoft does not give it behavioural carte blanche. It cannot behave contrary to antitrust laws.

Much of the testimony in the antitrust trial was shocking, revealing the company as a corporate bully, even towards its partners. Then, it took a belligerent and mocking stance in much of the trial that backfired badly.

Just as Microsoft often gets software wrong at first, but eventually gets it right, its more tempered utterances these days indicate it learned from that experience. (Notice how nearly every company comment on the trial is prefaced by the statement that it "respectfully disagrees")

Whether all that translates into the possibility of a settlement remains uncertain. But I think there is a genuine will on the part of the company and, at least, the DOJ to finish this. But even then, the company still has all those state attorneys and the EU snapping at its heels. Still, it's a bed of Microsoft's making and it will have to sleep on it.

klillington@irish-times.ie