Microsoft's 'DoJ'ing Tactics

Not so good would be an easy
conclusion from the evidence presented in the case thus far. Of course, Microsoft hasn't
had much of a chance to tip the scales the other way yet. Yet neither has Microsoft been
able to put up much of a legitimate defense against some pretty damaging evidence and
testimony. Put it the other way, Microsoft lawyers are not trying to outwit OJ Simpson's
lawyers in proving their client's innocence.

Legal experts say the company is
either not trying too hard to defend itself or doesn't have anything to defend itself
with. Most of Microsoft's legal argument and defense strategy appears to be centered
around the idea that all companies are involved in some strategic undermining of
competitors. "I don't think that Microsoft's argument that everybody else does it is
ultimately going to fly," said Robert Litan, a former Justice Department antitrust
enforcer. "Everybody else is not on trial."

Also hard to swallow for experts
has been Microsoft's rather wild accusations that it has been 'set up' by Netscape
Communications which allegedly fabricated the charge that Microsoft proposed to illegally
divide the internet browser market.

At the same time the analysts are
also questioning some of the government's strategy and evidence. The testimony by a top
AOL executive that AOL chose Explorer because it wanted to defend itself against
competition from a Windows-Microsoft Network tie-up appears perfectly reasonable. And why
wouldn't Microsoft be able to offer AOL a better deal than it could get from Netscape?

"It is very clear that
Netscape hasn't been excluded from the market," said Charles Rule, a Washington
antitrust Lawyer consulting for Microsoft. In court, Microsoft cited numerous emails from
AOL engineers who praised Internet Explorer as a better product.

Microsoft's only problem on this
issue deals with the restrictions it put on AOL's ability to promote Netscape Navigator.
Those restrictions show Microsoft tried to exclude competition and that is illegal.

Government lawyers emphasized this
with an email from Microsoft VP Brad Chase to AOL that said, "I want to be confident
that no competing browser or company will be pointed to from AOL's web site."

Most damaging for Microsoft, so
far, has been the steady stream of internal, high-level memos and emails to and from Bill
Gates that appear to show a pattern of bully tactics aimed at undermining the competitive
abilities of Netscape and Sun Microsystems and Microsoft's willingness to pressure
companies such as Apple into helping in efforts to move Netscape out of the browser
market.

Why Microsoft isn't putting up a
fierce defense has been the subject of a lot of speculation. Likely, the company is
thinking long term with a view toward the Appeals Court and even the US Supreme Court.
Likely, Microsoft is more interested in looking for ways to attack the government's
arguments and evidence on a higher-level constitutional legal basis than in getting into a
mud slinging contest over minor testimonial and evidentiary details before a judge who has
no reason to like anything Microsoft says or does.