(3 of 5)
If Microsoft is found to have violated the law, then what? Klein and his troops are scrupulously avoiding talking about a remedy (though they've had experts on retainer for months sorting through the options). The gamut of possible outcomes runs from a mild go-forth-and-sin-no-more to the truly Draconian stuff: forcing Microsoft to share its Windows source code with its competitors or carving up the company into the so-called Baby Bills (see chart). A judge's findings of fact are often a good indication of how far he's willing to go. It's like looking at a construction site in its early stages, says George Washington University law professor William Kovacic. "The depth of the excavation and the strength of the foundation tell you how big the building is going to be," he says. Jackson, as Kovacic puts it, has poured a lot of concrete.
There was much conjecture on Friday that Jackson's tough-minded ruling could be the cudgel the parties need to get them back to the negotiating table. Settlement is always a possibility. Intel staved off an antitrust suit of its own earlier this year by striking a quiet deal with the Federal Trade Commission in which it agreed to share more information about its processors with other companies. But despite a few stabs at working it out--including a round of quiet talks during the trial--Microsoft and Justice haven't been able to get started. The sharpness of last week's ruling could force both parties to dig in their heels.
Then there's the appeal process. "Microsoft gets friendlier audiences from here on," notes Kovacic. The D.C. Circuit Court of Appeals, which would review Jackson's decision and remedy orders, is the same one that slapped the judge down last year when he ordered Microsoft to offer Windows 95 without the Internet Explorer browser. The Supreme Court is more of a wild card, but its current pro-business tilt suggests the government may get a skeptical hearing. But neither is likely to overturn Jackson's findings of fact.
Meanwhile, Microsoft has been flexing its political muscle in new ways to help its cause. It recently asked Congress to cut the Clinton Administration's proposed budget for the Antitrust Division about $9 million. Klein is in no danger of running out of paper to write his appellate briefs, but it showed that Microsoft was ready to play hardball. Microsoft has also formed the so-called Freedom to Innovate network, a "nonpartisan, grass-roots network of citizens and businesses" that happens to reside on the company's website. And it has undertaken an aggressive state-level lobbying campaign--mindful, perhaps, that the suit against it is being pressed by 19 state attorneys general. Another political variable that argues for Microsoft to stall for time: the upcoming presidential race. If the Republicans take the White House, they may be willing to settle on more favorable terms than the Klein brigades would.
The fact is, United States v. Microsoft does have an ideology behind it. At some level, it's a return to the good old days of trust busting, something scarcely seen in the U.S. since the government's case against IBM sputtered out in the early 1980s. Emboldened by Judge Jackson's ruling, the Antitrust Division could soon be prowling for more high-profile, high-tech targets.