For the second time in about a month, the appeals court sided with Microsoft, explicitly rejecting Jackson's and the DoJ's argument that bundling Windows 95 and Internet Explorer was some unholy union of two separate products that violated the 1995 agreement between Microsoft and the government. Calling the Windows 95/IE bundling "a geniune integration," the appeals court said Microsoft was free to market it as one product even if its components were available separately. Furthermore, the injunction was criticized on a procedural level, first because Microsoft had not been notified in a timely manner about the preliminary injunction and could therefore not defend itself, and finally because letting Microsoft bundle would not have caused the "irreparable harm" that must be demonstrated to justify an injunction.
The appeals court was equally unswayed by Jackson's call for a special master, and voted 3-0 to send Lawrence Lessig packing. Microsoft had questioned Lessig's role not only on its face but also because the company felt he was biased in favor of Netscape.
This bodes ill for Jackson. Says TIME Washington correspondent Declan McCullagh, "Every time the appeals court has ruled on the DoJ-Microsoft case, the decision has gone in Microsoft's favor. I don't expect this to change. The appeals court is more sympathetic to economic arguments than Jackson." Indeed, the judge has not only been rebuffed for his past role in the case but has also been put on notice for his upcoming rendezvous with Microsoft on September 8 over a much broader antitrust agenda. There had better be some serious smoke coming out of that gun, because from here it looks like the case of Windows 95 is slamming shut.