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.