- The Washington Times - Sunday, February 25, 2001

When government and Microsoft lawyers gather tomorrow for appeals court arguments, they will argue the legal merits of accusations that the company was running an illegal monopoly to the great disadvantage of competitors and, ultimately, consumers. Federal District Judge Thomas Penfield Jackson upheld the Justice Department suit against the company, to the applause of media commentary citing the judge's inviolate "findings of fact" that Microsoft had engaged in anticompetitive conduct.

Reasonable people can disagree about those "facts," as editors here do. But it would be a mistake to consider this case a matter of simple legal jurisprudence, in which cloistered lawyers and judges reasoned together and arrived at a conclusion. Indeed, one of the most interesting aspects of the case is one that isn't likely to come up at all Monday: the political maneuverings of Microsoft's competitors to get Washington to do what they could not defeat Microsoft.

In his book, "Pride Before the Fall: The Trials of Bill Gates and the End of the Microsoft Era," John Heilemann describes in detail the campaign against Microsoft and its founder, Bill Gates. It seems that in January 1998, Sun Microsoft lawyer Mark Morris casually picked up the phone and called the then-head of the Justice Department's antitrust division, Joel Klein. The two men knew each other because for the past nine months Mr. Morris, in league with two other Microsoft foes, had been pushing the department to bring a case against Microsoft. They had set up a Beltway interest group called ProComp to make their case, lobbied DOJ and more.

What Mr. Morris now offered to do was establish a "blue-ribbon" panel of antitrust lawyers and economists, all collecting paychecks from anti-Microsoft forces of course, to lay out the kind of case the Justice Department might bring. Would Justice find that helpful? Mr. Morris asked. Sure we would, Mr. Klein replied. That set off a top-secret, three-month, $3 million tutorial that the Justice Department would find invaluable in bringing its case against Microsoft.

As Mr. Heilemann, who writes for Wired magazine, put the matter in an interview with CNN, "Sun Microsystems, one of Microsoft's biggest competitors in Silicon Valley … played the political game incredibly, incredibly well behind the scenes organizing this secret project … which was the effort that Sun put together with a bunch of nationally renowned economics and antitrust experts to help the government again, to figure out exactly what this case would look like and it cost Sun millions of dollars but it seems to have had a big effect on the formation of the case." In a separate interview with the Today Show, Mr. Heilemann added that Mr. Gates, "never could have guessed that his competitors would be that savvy in the ways of politics."

Mr. Gates wasn't that savvy about politics himself. Whatever the results of next week's oral arguments, consumers should weigh carefully the question of whether high-tech Silicon Valley or low-tech Washington should be guiding the future software innovation.

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