Who do you believe?
That's the question that many trials hinge upon. But the Microsoft antitrust case was supposed to be different. This courtroom conflict was framed from the beginning as a duel of arcana -- a daunting dispute over browser integration and operating-system innovation and software-industry competition, the complexity of which, pundits declared, would flummox mere mortals and overwhelm the sexagenarian judge.
But if you read Judge Thomas Penfield Jackson's blistering final order mandating the breakup of Microsoft, you realize that this trial, in the end, came down to some rudimentary questions of trust. The first courtroom battle of the new century and the new economy turned out like an old Perry Mason trial.
It wasn't, ultimately, what Microsoft did with its browser or did to its competitors that brought the company to its present pass, Jackson makes clear; it was the company's behavior during the trial itself that persuaded the judge that "conduct remedies" could not be counted on to stop Microsoft from breaking antitrust laws, and that only the more radical "structural remedy" of a breakup could work.
The judge's order minces no words: "Microsoft has proved untrustworthy in the past ... Microsoft's profession of surprise [at the speed of the trial's final phase] is not credible ... Microsoft as it is presently organized and led is unwilling to accept the notion that it broke the law ... Microsoft, convinced of its innocence, continues to do business as it has in the past, and may yet do to other markets what it has already done in the PC operating system and browser markets ..."
We'll probably never know which moment of the trial finally pushed the judge over the edge.
Was it one of the scenes from Bill Gates' videotaped testimony in which the software whiz pretended not to understand plain English questions?
Was it the infamous doctored video that purported to show how removing the browser from Windows busts the operating system?
Was it Microsoft's sudden insistence -- as the prospect of a breakup loomed -- that its applications and Windows teams need to work together closely, after years of having maintained that these groups are separated by a "Chinese wall"?
Or could it have been as late in the game as last month, when Microsoft lawyers claimed to be taken by total surprise that the judge was closing down any further hearings, yet had prepared detailed briefs for just that eventuality?
In a Thursday interview with the Wall Street Journal, Jackson quoted a Latin saying, "Falsus in uno, falsus in omnibus," which basically means, "False in one thing, false in everything." "It's a universal human experience," the judge said. "If someone lies to you once, how much else can you credit as the truth?"
In the end, the collective weight of Microsoft's record of evasions, half-truths and outright lies seems to have led Jackson to conclude that Microsoft has not only broken the antitrust laws, but has become a kind of rogue company that cannot be trusted at all.
This comes as a vindication for those of Microsoft's competitors who have long maintained precisely that. But if this is truly the case -- if Microsoft's culture is so thoroughly tainted with the habit of deception -- then it's only fair to ask how effective breaking up the company can be. Won't the two Baby Bills inherit this same culture? What's to ensure that either or both will actually change?
Microsoft's unshakable arrogance turned the company into its own worst enemy during the trial. Now Gates, Ballmer and company are betting on an appeals court reversal. That -- or rescue by the U.S. Supreme Court -- is entirely possible. But Redmond's innings are running out.
What's remarkable about the week's events is that every time Microsoft opens its collective mouth it reinforces the judge's conclusion that the whole company is in denial. While Microsoft insists, "We'll win someday," the prospect of an actual breakup becomes increasingly concrete. Is anyone in Redmond prepared to deal with that?
Microsoft's message has long been: We're smarter than you. We're richer than you. We're right and everyone else is wrong. So stay out of our way.
It's one thing to send that message when you're riding the wave of a technological revolution. But sticking to it when a federal court has just ruled that you have broken the law goes beyond mere arrogance. It's positively self-destructive.
If Microsoft does get broken up, the list of those responsible should lead with the name of Bill Gates himself.
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