Judge moves quickly, backs breakup of Microsoft

If you thought the government plan to breakup Microsoft into two companies was too severe, wait until you hear the judge's take on the proposal: He thinks it doesn't go far enough. Judge Thomas Penfield Jackson appeared to support two "friend of the court" proposals that suggest breaking up Microsoft into three companies instead, one each for Windows, Office, and the company's Internet products. Jackson criticized the government proposal as "creating two separate monopolies" and asked the DOJ to submit a new version by Friday. But Microsoft didn't exactly receive any good news either: It's request for a longer discovery hearing were thrown out quickly, and the judge indicated that he would issue his final ruling by the middle of next week. So the Microsoft trial is back on a fast track, which Microsoft proponents argue will only help the company during the appeals process.

"We are very near the appellate phase of this controversy," said Microsoft general counsel William Neukom after the hearing. "On appeal, Microsoft will be raising challenges to the procedures used throughout this trial, including the remedy phase. We will be challenging the findings of fact, the conclusions of law, and the nature of any relief the judge might enter." The nature of relief is pretty obvious: Jackson described a plan to split Microsoft into three companies as an "excellent brief'" after he blasted the government's proposal. "This is anything but simple to implement," he said. "Do you think Microsoft would be a willing participant?" Jackson then complained that the government's plan would allow Microsoft itself to determine how the company would be split up. However, he seemed to agree with the government's response to this problem: "We give them the opportunity to do it first, but if they come back with something that simply doesn't meet our requirements, the government will have to do it," a DOJ lawyer said.

When Microsoft asked the judge for an extension so that it could call further hearings, the judge simply denied the motion. "This case has been pending for two years," he told Microsoft's lawyers. "I am not contemplating any further process." Microsoft had requested to call a number of witnesses to the stand, including Microsoft chairman Bill Gates and president Steve Ballmer. But Jackson, who had requested Gates' presence in court several times last year, appeared unamused that the company was so eager to have Gates appear now. "We sought to have our day in court and the district court has decided not to grant us that process," Microsoft's Neukom said later. But Jackson was not amused by Microsoft's courtroom grandstanding. "I find it somewhat ironic that \[Microsoft\] believes its travails will end at the court of appeals, and yet wants to spend more time in this court," he told the company's lawyers.

The judge's desire to forego the dragging, long-term antitrust trials of the past is understandable, but it may also be his undoing: Legal experts agree that Microsoft's strongest argument with the Appellate Court will be that the company wasn't given the time needed to defend itself against a breakup. Going forward, the government will submit a revised remedy proposal on Friday and then Microsoft will respond to that brief next Tuesday. After that, Judge Jackson will issue his final judgment against the company

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