A Test for Antitrust Law

Yahoo | at | by Mike

Microsoft's lawyers say testimony about such technologies has no place in the final phase of a case that for four years has centered largely on Web browsers like Netscape Navigator and Internet Explorer. They are pressing Judge Colleen Kollar-Kotelly to ban mention of server operating systems, hand-held devices, television set-top boxes and Web services, arguing that the states are trying to "muddy the record" and turn the remedy hearing into a new liability trial. Their opponents, however, insist these are the future battlegrounds where decisions in this case will count.

But the judge, who has received written briefs from both sides on the matter, has steadfastly refused to make a broad decision. Instead, she reminds the states about twice a day that she does not want to "go down the road of new anticompetitive conduct," but she does agree to consider the testimony in the context of an appropriate remedy.

But the judge has precious little legal precedent to guide her. Most antitrust cases are settled before this point, many remedies require a breakup the one option the appeals court strongly discouraged and the rapid evolution of technology may make restoring the conditions that existed before Microsoft's violations impossible or irrelevant.

Microsoft dismisses that notion as fanciful, and argued that Mr. Richards's testimony which described Microsoft's efforts to undermine the RealPlayer by withholding information had no place in the remedy trial. And Microsoft finds the upcoming testimony even more offensive. "Last week, there were issues that at least dealt with what the case was about," said Jim Densler, a Microsoft spokesman. "This week, we'll see a shift in witnesses that will discuss products that have nothing to do with this case whatsoever."