Microsoft Appeals Breakup Ruling

ByABC News
February 26, 2001, 5:12 PM

Feb. 27 -- The U.S. government's case against Microsoft suffered a major blow in two days of oral arguments before a federal appeals court ending today, analysts said.

The seven judges of the U.S. Circuit Court for the District of Columbia will now consider whether to uphold a lower court judge's order to break the software company in two, to send it back for reconsideration, or to vacate it eliminate it entirely.

The justices took a dim view of the government's "tying" claim that Internet Explorer and Microsoft Windows were illegally linked together, experts said, and tore into the idea that Explorer monopolizes the browser market. District court judge Thomas Penfield Jackson may never have proved there is a separate browser market to monopolize, the judges said.

"They were brutal on the government lawyers I think there's a 50 percent chance that the entire thing will be vacated," said Bob Lande, a law professor at the University of Baltimore.

Unusually, the judges also spent this afternoon criticizing Jackson's out-of-court statements during the trial, where he badmouthed Microsoft to journalist Ken Auletta and others. Auletta later published some of Jackson's statements in a book, World War 3.0.

"The system would be a sham if all judges went around doing this," Judge Harry Edwards told government lawyer John Roberts.

But the judges took a harsh view of Microsoft's position that the whole case should be thrown out based on Jackson's statements. Their questions to Microsoft lawyer Richard Urowsky focused on when Jackson would have come up with his anti-Microsoft opinions, and whether it could be proved that he was actually biased against the company.

There is no evidence "other than your own speculation that he had these views before the trial started," Judge David Tatel told Urowsky.

Sending it Back

The judges are more likely to send the case back to a lower court for reexamination than to throw it out entirely, but Jackson won't be the judge to look at it experts said.