IT'S OVER!

Negotiations between Microsoft and the Department of Justice team have failed. Judge Jackson may rule as soon as Monday.

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Federal Mediator judge Richard Posner has declared negotiations over. The two sides are just too far apart to reach an agreement. People "close to the case" indicated Microsoft would not admit any wrongdoing, would not release any Windows code, would not accept a breakup, and would not accept restrictions on what they could "integrate" into Windows.

For their part, the DOJ team is highly distrustful of Microsoft, will not accept any promises of good behavior, and will not accept "behavioral" remedies. They want self-enforcing structural remedies. They have learned the hard way that Microsoft's word is as good as swamp gas.

At the beginning of the trial, the 19 state attorneys general supporting the DOJ were expected to be the weak sisters. Instead they proved to be hard nosed and forced the DOJ to take a firmer stance than it might have otherwise. Many of these attorneys general want Microsoft broken up.

Trial judge Thomas Penfield Jackson had hoped to escape ruling on this case, as things are sure to get very messy very fast afterwards. Now he will have to issue the "Finding of Law", which state the violations of law which derive from the "Finding of Fact" he issued a few months ago. Then the case will move on to the penalty phase.

The real problem for Microsoft is that, once the Finding of Law is issued, it can be used as proof of wrongdoing by anyone else suing them, and there are at least 100 lawsuits pending against them. It was questionable if the Finding of Fact could be so used if the Finding of Law were not issued. The Finding of Fact clearly states that Microsoft has a monopoly and has used that monopoly improperly.

Microsoft is certain to appeal, and would hope for the best from the DC court of appeals, which has, in the past, ruled in Microsoft's favor, giving the excuse that they were not qualified to understand the technology issues involved. At this point they would only be able to reevaluate the Finding of Law unless Microsoft can show gross error in the Finding of Fact, which nobody thinks they can.

Judge Jackson and the DOJ have the option of sending the case immediately to the Supreme Court for appeal, bypassing the DC Court of Appeals entirely, due to a clause in the anti-trust law. There is some risk of offending the high court by forcing them to take the case, but it may be worth the risk.

©:Andrew Grygus - Automation Access - www.aaxnet.com - aax@aaxnet.com
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