January 15, 2001 4:00 AM PST

Starr sets his sights on Microsoft

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Microsoft rivals hire Ken Starr

January 12, 2001
WASHINGTON--Maybe "challenge" should be Ken Starr's middle name.

The lawyer best known for taking on President Clinton in the Whitewater and Monica Lewinsky scandals has turned his sights to another controversial battle. This time, the former judge and U.S. solicitor general is assisting a trade group supporting the government's prosecution of Microsoft.

Starr helped draft a friend-of-court brief filed Friday asking the U.S. Court of Appeals for the District of Columbia Circuit to uphold the government's antitrust victory over Microsoft.

High-tech trade group Project to Promote Competition & Innovation in the Digital Age (ProComp) drafted Starr to work with Robert Bork and Walter Dellinger, all former solicitors general, on the legal brief. America Online and the Software and Information Industry Association also participated in the joint brief.

Starr's joining ProComp's Microsoft antitrust trial campaign creates some strange bedfellows. The group's members include Oracle, which in June 2000 took flak for hiring Investigative Group International to snoop on Microsoft's supporters. Coincidentally, President Clinton employed IGC during Starr's Whitewater investigation.

ProComp has submitted several briefs penned by Bork in support of the government's case, but adding Starr increases the stature of its filings. "Having such a strong conservative figure and former member of their court could send a strong message to the Court of Appeals," said Bill Kovacic, an antitrust professor with George Washington University School of Law.

At issue in the appeal is U.S. District Judge Thomas Penfield Jackson?s June 2000 order that Microsoft be broken into separate operating systems and software applications companies after earlier ruling the company violated antitrust law. The Justice Department and 19 states filed the case in May 1998.

But with the case on appeal before a largely conservative body of jurists and out-of-court remarks by Jackson potentially undermining his credibility, the government and its supporters need a boost, say analysts.

Microsoft has argued that Jackson's pointed comments to the media after his ruling show bias. Either way, his credibility is marred, as are potentially key portions of his decision, regardless of their apparent merits, Kovacic said.

"Starr does a lot for the credibility gap," said Bob Lande, an antitrust attorney with University of Baltimore Law School. "But it would mean even more if the government had called on him to make the argument before the Court of Appeals."

CNET News.com's Joe Wilcox spoke briefly with Starr about his involvement in the case, which ProComp President Mike Pettit said would extend beyond last week's legal brief.

CNET News.com: How did you come to work on the ProComp brief?
Starr: I was pleased to be called by Judge Bork back in the fall as I was returning to full-time law practice. I began assessment of the case and I became convinced that the district judge had (drafted) very careful, well-founded "findings of fact." So I was pleased to be part of the effort as friend of the court, in support of Judge Bork, who had obviously been monitoring and following the case very closely.

Why do you see this case as so important?
This is obviously a terribly important part of our economy, but it also seems to be an important question as to whether we will in fact continue to dedicate ourselves to vigorous enforcement of the antitrust laws in new technological areas. And it's especially important it seems to be in the software industry, where competition issues are going to be vitally important.

You are convinced, then, Microsoft is a dangerous monopoly?
I am fully satisfied, and I think most reasonable observers are, that Microsoft enjoys a monopoly in the operating systems market and that is the appropriate market under the law. I am further satisfied, based on the evidence at trial and the judge's very carefully articulated, very comprehensive findings of fact that Microsoft abused that monopoly power. That is, as Judge Bork has been saying all along, is the core of this case, the abuse of monopoly power so as to destroy budding competition, and that most dramatically is demonstrated in the Netscape story.

Microsoft has positioned this case as an attempt to regulate the software industry. What do you think about that?
It's quite the opposite. In fact, I think one of the advantages of this particular remedy that Judge Jackson has fashioned is that he has not set himself up or any other judge up as a software czar. He is not the czar of the industry, but rather he is following the kind of structural remedy that number one is called for in the antitrust laws and antitrust principles, and secondly is conceptually and analytically clean in terms of fostering the competitive environment.

So it's not regulation?
It is just the opposite of regulation. It is, let's level the competitive playing field in terms of eliminating structural barriers to a competitive industry and then unleash these competitive forces, and then let competition resume after competition has been squelched in recent years.

Some people have argued that Jackson's breakup order is the right remedy--separating operating systems from software applications--but the wrong one for the case the government brought, which focused more on the browser market.
I know that those arguments go back and forth, but I think that when you look at the Microsoft documents and the Microsoft e-mails, Microsoft clearly intended to squelch Netscape, which it viewed essentially as a neutral, potential substitute for the Windows platform. The evidence is overwhelming in that respect, and it's such an unusual case in that Microsoft so clearly and emphatically indicated exactly what it was going to do, then it systematically proceeded to do it. First, through contracts, licensing arrangements. Then through the coding process and the bundling, or the linking, of the operating system to the browser. Respectively, I disagree.

 

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