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Nonetheless, the government is not planning on limiting its remedies to IE and Windows 98. Instead, it's hoping to win a set of remedies that will prevent the company from unfairly conquering new markets, such as corporate enterprise software and the Internet. That has Microsoft's lawyers screaming foul. They argue that it's unfair for the government to offer evidence about one set of products and then design a remedy that deals with others. "It's as if you walked across the street against the light, and you were jaywalking. Then they decided to put you in jail because we are concerned you might go out and murder somebody," says Charles F. Rule, an antitrust partner at Covington & Burling in Washington, D.C., who represents Microsoft. In the upcoming remedies proceedings, look for the company to argue that the imposition of restrictions on products such as Office and Windows 2000 would be a violation of the company's basic constitutional rights of due process. In support of this proposition, Microsoft's attorneys are likely to cite, among other legal precedents, the Supreme Court cases U.S. v. DuPont (1961) and U.S. v. Glaxo Group (1973). "The purpose of relief in an antitrust case is 'so far as practicable, [to] cure the ill effects of the illegal conduct,'" the High Court wrote in the Glaxo decision. Unsurprisingly, Justice Dept. antitrust chief Joel I. Klein disagrees with Microsoft's arguments. Remedies are "designed to essentially restore competition and, to the extent possible, make sure...anticompetitive behavior won't be used in the future," says Klein.
Nevertheless, Gellhorn adds, there are general principles of fairness that limit antitrust remedies. If, for example, the government tried to use its lawsuit as a vehicle for placing restrictions on the Microsoft online publication Slate, that would be out of bounds. "Microsoft would have a good reason to say, 'what has this got to do with the price of rice?'" says Gellhorn. Unfortunately for Bill Gates & Co., the government isn't going far afield. It's not trying to clamp down on Slate. It is aiming at products that are directly related to the company's desktop monopoly. And that means that Microsoft probably won't have much luck trying to argue that the remedies have to be limited to specific software discussed in the Netscape story. France covers Legal Affairs for Business Week in New York. Have a question or a comment? Let him know at mike_france@ebiz.businessweek.com. |
