- The Washington Times - Wednesday, September 27, 2000

The Supreme Court's refusal yesterday to hear Microsoft Corp.'s appeal of the antitrust verdict against it won't change the ultimate outcome of the case, Microsoft backers and opponents say.
But the sides disputed whether delays caused by sending the antitrust case to an appeals court would harm Microsoft, consumers or the technology industry.
Some in the industry said technology is moving so quickly that by the time the case concludes perhaps as late as 2002 a judicial ruling will be irrelevant because emerging technology will challenge the dominance of Redmond, Wash.-based Microsoft's Windows operating system.
Others said they are concerned the delay will give Microsoft more time to engage in the anti-competitive behavior that U.S. District Judge Thomas Penfield Jackson accused Microsoft of in June.
"The only question is how Microsoft will behave in the market until then," said Mike Pettit, president of the District of Columbia-based Project to Promote Competition and Innovation in the Digital Age, a Microsoft opponent.
The delay also could give Microsoft time to strengthen its hold in other areas of the technology sector, the company's opponents said, including the growing market for software for wireless devices like personal digital assistants and cellular phones that let users log onto the Internet.
Supreme Court Justice Stephen G. Breyer, who cast the only dissenting vote, expressed concern that a delay could affect the technology industry.
"The case significantly affects an important sector of the economy a sector characterized by rapid technological change. Speed in reaching a final decision may help create a legal certainty. That certainty, in turn, may further the economic development of that sector so important to our nation's prosperity," he wrote yesterday.
Most people on either side of the debate seem to embrace the justice's statement, but for different reasons. James Gattuso, vice president for policy and management at the pro-Microsoft Competitive Enterprise Institute, said the longer a decision is put off, the less likely it is Microsoft will have a dominant position in the industry.
"If this takes a couple of more years, people may look back on Windows as a quaint relic of the past," he said.
That won't happen, Microsoft critics argue, because Judge Jackson postponed enforcement of his remedies to give the company time to appeal his decision.
The judge ordered Microsoft to split itself into two companies. One would sell Windows, the operating system that runs most of the world's personal computers, and the other would sell the company's other products, from Internet services to its Office software.
As long as Microsoft can behave as it has, consumers and competitors are at risk, said Ed Black, president of the Computer and Communications Industry of America, an anti-Microsoft trade group.
"We would have loved to see the ongoing illegal conduct addressed sooner. In that sense, a delay is bad. Since the remedies were stayed, there is in fact no real restraint on Microsoft," Mr. Black said.
William Kovacic, an antitrust expert and George Washington University law professor, said the attention paid to Microsoft as a result of the ongoing court case will in fact keep the company honest, and its competitors are the ones reaping the benefits.
"That [scrutiny] gives competitors more room to maneuver," Mr. Kovacic said. "We will see an erosion of Microsoft's position."
The delay also could end the government's chance for a breakup of Microsoft, Mr. Kovacic said, because the case must go through the appeals court, aborting the fast-track approach the Justice Department sought at the Supreme Court.
But people clearly in the pro-Microsoft and anti-Microsoft camps said yesterday a delay won't influence the outcome.
Pro-Microsoft groups said yesterday the software giant still will win, though it will take longer for the company to be vindicated.
Microsoft opponents argue the extra judicial step merely prolongs an inevitable outcome ending the dominance of the company's Windows operating system.
"The longer we wait for a decision, the longer we wait for fairness," Mr. Pettit said.
Microsoft closed at $62.69, up $1.44, on the Nasdaq Stock Market.

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