June 21, 2005 8:15 AM PDT

Former judge defends his bid to break up Microsoft

WASHINGTON--Former U.S. District Judge Thomas Penfield Jackson, who savaged Microsoft from the bench before being removed from the case for his wayward conduct, still thinks that breaking up the software behemoth was the right thing to do.

Thomas Penfield Jackson
Thomas Penfield
Jackson

In a speech here Tuesday before the American Antitrust Institute, Jackson said that the "Microsoft persona I had been shown throughout the trial was one of militant defiance, unapologetic for its past behavior and determined to continue as before."

"Windows is an operating system monopoly, and the company's business strategy was to leverage Windows to achieve a comparable dominion of all software markets," Jackson said. "Nothing has changed, to my observation, in the five years that have elapsed since my decision...Microsoft has won the browser war in the United States. Netscape Navigator, if it is still available at all, has only a small fraction of the browser market."

In June 2000, Jackson ruled that Microsoft should be split into two companies: one that would sell office software and the browser, and another that would be responsible for everything else.

Even at the time the trial began, Jackson had become unusually vocal in his public and private criticisms of Microsoft, which had been sued by the U.S. Justice Department and state attorneys general on antitrust charges. Jackson likened Microsoft executives to gangland killers and stubborn mules who should be walloped with a 2-by-4, and appointed Microsoft critic Larry Lessig as a special master in the case. A special master is a neutral expert with quasi-judicial powers who evaluates factual disputes.

But what alarmed the U.S. Court of Appeals for the D.C. Circuit most was Jackson's habit of inviting favored reporters into his chambers for private conversations that involved trash-talking about the world's most famous antitrust defendant while court proceedings were under way. "The system would be a sham if all judges went around doing this," Chief Judge Harry Edwards warned at the time.

As a result, Jackson was given the boot from the case. The D.C. circuit court ruled unanimously that Jackson "seriously tainted the proceedings," and a new judge, Colleen Kollar-Kotelly, was appointed. The appeals court also overruled Jackson's decision to carve up Microsoft, which led to the case being settled in November 2001.

Jackson, who is now an attorney at the Jackson and Campbell firm, used Tuesday's appearance to fire back at the appeals court. "When the reversal of my consent-decree case rulings on the contempt petition finally came down, it became apparent to me that I faced a very real prospect of reliving the 'trench warfare' experiences of my colleagues who had handled the AT&T and the IBM antitrust cases."

He also complained that his "creativity" in appointing Lessig was not seen favorably: "Again my creativity was unappreciated by the court of appeals--the consent decree was clear enough to them; a special master was unnecessary."

48 comments

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"If it is still available"...?!?
This man is so out of touch it is unreal. He has no idea whether or not Netscape is still available and obviously has never heard of Mozilla or Firefox, which has made not only a noticable dent in IE's marketshare but actually spurred MS to put developers back on a new, separate version of IE.
Posted by tubedogg (31 comments )
Reply Link Flag
No Longer Significant
I think his point is that Netscape the company, as a competitor is no longer viable. Remember that Netscape had a whole suite of products that ranged from e-Commerce applications to business applications that were to be used through the browser. All of that is long dead. True the open source movement is trying to resurrect a lot of those Netscape ideas, but we need to remember that they are doing so from a point of market minimalization, whereas Netscape owned the browser market back in 1996.

Unless Linux and/or OSX make a significant dent in the Windows market share, it's hard to see how anyone will truly undermine Microsoft in any market segment it chooses to attack.
Posted by (274 comments )
Link Flag
Jackson is right, IE still dominant becasue it's "tied"
"This man is so out of touch it is unreal. He has no idea whether
or not Netscape is still available and obviously has never heard
of Mozilla or Firefox,"

Nonsense! He is not out of touch at all. IE is still the dominant
browser despite Firefox inroads, and IE 7 was just released with
Tabs as a direct result of encroachment by FF.

Jackson;s referral to the current state of Browsers is accurate, It's
called hyperbole. From the dictionary: "A figure of speech in
which exaggeration is used for emphasis or effect"
Posted by technewsjunkie (1265 comments )
Link Flag
Jackson is right, IE still dominant because it's "tied"
"This man is so out of touch it is unreal. He has no idea whether
or not Netscape is still available and obviously has never heard
of Mozilla or Firefox,"

Nonsense! He is not out of touch at all. IE is still the dominant
browser despite Firefox inroads, and IE 7 was just released with
Tabs as a direct result of encroachment by FF.

Jackson;s referral to the current state of Browsers is accurate, It's
called hyperbole. From the dictionary: "A figure of speech in
which exaggeration is used for emphasis or effect"
Posted by technewsjunkie (1265 comments )
Link Flag
It's a shame that
the breakup of Microsoft did not happen. The software industry
would be a lot better off today if Microsoft were not able to use
its domination of the desktop to pry its way into markets that
others create.

When Micosoft seizes dominance, it stops innovating. Look at
what happened to Internet Explorer after it hit 90% of desktops:
stagnation. No built-in pop-up blocking, no tabs, nothing
except security problems. With the success of Firefox, Micosoft
was finally forced to change plans and upgrade Explorer.

Office could be a lot better if it faced real competition. So could
Windows for that matter. For this reason, I hope Linux and the
Mac OS get at least 15% of the desktop marketshare. Much
more, I hope. Keep Microsoft on its toes.
Posted by Thrudheim (306 comments )
Reply Link Flag
I don't see
Linux on the desktop going anywhere. OS X, yes, especially once the transition to Intel chips is complete.

Linux is still way too complicated for the average user and despite their best efforts to copy the user-friendliness of the Windows and OS X desktops, they have a long way to go. Not to mention that device support has rather large gaps.
Posted by tubedogg (31 comments )
Link Flag
Jackson and EU RIGHT... US courts WRONG
Regardless of Jackson's actions, comments, etc.... Microsoft was
NOT competing fairly and was ultimately found GUILTY.
Unfortunately the US remedy was simply a slap on the hand and a
BIG loss for consumers.
Posted by edgedesign (290 comments )
Reply Link Flag
That should be...
"Regardless of Jackson's actions, comments, etc.... Microsoft IS NOT competing fairly and was ultimately found GUILTY."

It is still going on at the same time the EU is "punishing" them.
Posted by SteveBarry687 (170 comments )
Link Flag
Who Let The Dogie Out... Ruf, Ruf!
The landmark case in which Judge Colleen Kollar-Kotelly was appointed in place of former Judge Jackson and which saw the appeals court also overruling Jackson's decision to carve up Microsoft should have been the final ruling and not having EU again apparently re-hatching a case against Microsoft - "a United States Company". Microsoft as a software company has every right to be innovative and in return be compensated for its efforts; I am not against the LAMP Stack and will use the products if they are capable of getting the "task" at hand completed - Is the entire "LAMP Stack package" (products and services for free?). If Windows OSes are seen as the "forbidden fruit" of the garden for the greater good (simplicity and ease of operation) of the masses then let it be eaten. Is the "LAMP" Stack not up to the competition! Why take jobs and money out of the United State economy? W-H-O L-E-T T-H-E D-O-G-I-E O-U-T - RUF, RUF...
Posted by (187 comments )
Link Flag
Jackson rambles on...
Netscape played a sleight of hand by not coming down on the Silicon Graphics workstation. They were out for themselves, nevertheless. Judge Jackson appears to believe the govt prints money straight into people's bank accounts as he doesn't mention unionisation. Nothing wrong with extending the www or cordoning the extension off which is at the root of the problem. Nothing free in this world, not even ancient history. :) :) :) Looking at Google's $3oo... they have to do a web browser to justify or at least try to justify the price.
Posted by FisherKingKQJ (59 comments )
Reply Link Flag
Aren't they all?
"They were out for themselves"

Isn't every company, corporataion and organization out for themsevles. If they weren't, they wouldn't be in business.

The problem is how Microsoft handles competition. They either buy-and-bury a company or give a product away for free that their competition charges for. Microsoft has enough money to take a loss in one category to kill a competitor and make it up in another.
Posted by SteveBarry687 (170 comments )
Link Flag
Pot calling the kettle....
>Jackson rambles on...
>Posted by: Nick Letica
>Posted on: June 21, 2005, 7:22 PM PDT
>Story: Former judge defends his bid to break up Microsoft
>Netscape played a sleight of hand by not coming down on the
>Silicon Graphics workstation. They were out for themselves,
>nevertheless. Judge Jackson appears to believe the govt prints
>money straight into people's bank accounts as he doesn't
>mention unionisation. Nothing wrong with extending the www
>or cordoning the extension off which is at the root of the
>problem. Nothing free in this world, not even ancient history. :)
>:) :) Looking at Google's $3oo... they have to do a web browser
>to justify or at least try to justify the price.

Talk about rambling...
Posted by (274 comments )
Link Flag
computers in schools
Rubbish. Here in NZ the govt barred said product for being too costly and proprietary. Govt issue phones are voIP by Cisco the only co with a cash mountain and credibility. :) :) :)
Posted by FisherKingKQJ (59 comments )
Reply Link Flag
I don't get it
You say "computers in schools" in your subject line, then talk about VoIP phones and how the government in New Zealand banned proprietary equipment. What the heck does VoIP phones have to do with computers in schools? I don't think anybody in their right mind would call Windows proprietary. Also, New Zealand is not where Microsoft installed their PCs, that was part of the DoJ suit in the USA.
Posted by SteveBarry687 (170 comments )
Link Flag
Current IE proves Jackson right
Look no further than the current state of the browser landscape to prove Jackson's stance.

IE was developed "just enough" to beat Netscape. It then languished, security holes and all, as MS faced no competition. Only when the open source-based Firefox started making inroads did MS make any changes of note to IE and then only to emulate FF.

How long before MS leverages its OS-tie-in again to swat the pesky FF?
Posted by (1 comment )
Reply Link Flag
Not long
I dont think it will take long for MS to start hacking away at Firefox.

Its pretty sad when you stop to think about how far we could have come in technology today if the market wasnt dominated by a company that only grudgingly moves forward by copying the innovations of organizations with a research and development budget of $0.
Posted by Fray9 (547 comments )
Link Flag
Jackson Was a Terrible Judge
No doubt, CNet is once again taking advantage of the anti-Microsoft sentiment that whips open-source hackers into frenzy and drives the news.com hit-counter through the roof. Certainly, Jacksons ignorant ramblings are hardly worth reporting. Nearly everything he says aloud demonstrates his lack of judicial qualifications.

<a class="jive-link-external" href="http://www.inaniloquent.com/PermaLink.aspx?guid=549e1750-6d81-4ee7-b850-af8b9700df55" target="_newWindow">http://www.inaniloquent.com/PermaLink.aspx?guid=549e1750-6d81-4ee7-b850-af8b9700df55</a>
Posted by William Squire (151 comments )
Reply Link Flag
Of course
Of course.. why do you think the MS shills in the judicial branch put him in charge of the case?
Posted by Fray9 (547 comments )
Link Flag
 

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