Working the Microsoft wait: Partisans woo public in advance of court word

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WASHINGTON - The young law clerks and reporters line up at the courthouse each Tuesday and Friday, some hoping the Court of Appeals will hand down the Microsoft antitrust decision and get it over with, others praying the judges will leave them free to use their Oriole tickets.

As they wait for the court to decide, any day now, whether a judge's order to break up Microsoft will stand, the company's allies and enemies are still filing what amount to legal briefs. The anti-Microsoft Project to Promote Competition and Innovation in the Digital Age (ProComp) has disseminated two "white papers," written by high-profile lawyers and aimed at proving that Microsoft's newest technologies violate antitrust law.

Microsoft rival America Online has floated its own critique on Capitol Hill.

Lawyers for the pro-Microsoft Association for Competitive Technology (ACT) have argued in a response that, in effect, ProComp and AOL see antitrust violations where none exist.

What makes these briefs different from the filings each group made earlier with the District of Columbia Court of Appeals is that none is delivered to the court.

The out-of-court briefs are just one facet of an intense lobbying effort that, legal observers say, is aimed at influencing the appeals judges, European Union antitrust officials who are considering separate complaints against the world's largest software maker, and the Bush administration and Congress.

The partisans, though not Microsoft itself, have held dueling teleconferences for reporters in recent days. Microsoft opponents featured former D.C. appeals judge and Whitewater prosecutor Kenneth Starr. Microsoft's friends offered former White House counsel C. Boyden Gray. Both are paid consultants.

Some journalists receive demonstrations of Microsoft's upcoming Windows XP operating system, with Microsoft critics pointing out allegedly anticompetitive features. And Washington bistros benefit daily from feeding Microsoft watchers.

"The battle is for the court of public opinion," said Ernest Gellhorn, an antitrust specialist at the George Mason University School of Law.

"What that public opinion does is it indirectly has an impact on the court. It has an impact on government, on whether the Justice Department should pursue the case."

Thursday marks the one-year anniversary of U.S. District Judge Thomas Penfield Jackson's order to split Microsoft into two companies. As they await the appeals panel's review of that decision, advocates on each side seek to manage expectations.

Following a clearly critical review by the seven appeals judges during oral arguments in February, Microsoft fans and foes alike expect the panel to weaken Jackson's findings.

Microsoft allies suggest any retrenchment would be a major victory. "Anything the court does that is at all favorable to them, even in the short term, they will explain as some sort of exoneration," said Ed Black, president of the pro-breakup Computer & Communications Industry Association. "But a victory for them is not necessarily a victory."

Breakup advocates argue the Supreme Court could still divide the company even if the appeals judges overturn the breakup, so long as they uphold one of Jackson's three findings of illegal conduct: that Microsoft maintained a monopoly.

"All we need is monopoly maintenance," one breakup advocate said on condition of anonymity.

Jackson also found that Microsoft attempted to monopolize a second market, and tied a new product with a monopoly product.

Few expect the tying claim to survive the withering scrutiny the appeals judges showed during court arguments, especially given a past ruling in a related Microsoft case that tying Windows to Microsoft's Web browser was legal.

If the court does reject the claim, the issue would likely be sent back to District Court, although probably not to Jackson.

Microsoft's critics are letting the Bush administration know they will aggressively oppose any Justice Department efforts to settle the case. One of the ProComp briefs was written by Susan Creighton, a Silicon Valley lawyer who co-authored the brief that persuaded the Department of Justice to look into the case.

"Microsoft may be acting as though it believes it can do anything it wants because it believes the new Bush administration will look the other way on antitrust enforcement," Starr said. "Microsoft seems to be thumbing its nose at the Justice Department and the states that brought the antitrust lawsuit."

Starr was referring to Windows XP - set for an October launch - and HailStorm, an upcoming service that will allow Microsoft customers to store data on the Internet. Windows XP is expected to include Media Player streaming video software, an identity verification service, Windows messaging service and other features.

If the appeals panel returns the case to the lower court to reconsider the breakup remedy, Microsoft critics want government lawyers to use the company's new products as evidence it is continuing to leverage its Windows monopoly.

"This next generation of parties - the new Netscapes - that are feeling they're being pinched by Windows XP, they want to have their cards on the table for the District Court," said Andrew Gavil, a Howard University Law School antitrust expert.

Some Microsoft rivals may have other objectives. According to an internal AOL memo, quoted by the Web site BetaNews last month, AOL wants to stall deployment of Windows XP so it can better position its online service and "develop an appropriate XP solution."

According to BetaNews, the memo suggested sending a "message to AOL members and the public that XP is 'not ready' for broad adoption (i.e., has bugs, will not run AOL, will not run your existing software, will violate your online privacy, etc. ... )."

AOL denied any knowledge of the document, and said the excerpts the Web site quoted did not reflect the company's thinking.

"Our competitors have a longstanding pattern of attempting to use legal tactics to compete against Microsoft, and their recent behavior is just the latest example," Microsoft spokesman Vivek Varma said.

Although such campaigns are not unheard of in the nation's capital, the technology industry's lobbying machine was largely created since the case began. When Rep. Jay Inslee, D-Bainbridge Island, first arrived on Capitol Hill in 1993, he said the industry ignored Washington "as sort of an appendix, meaning a vestigial organ with no function in the modern era."

The pre-decision public-relations campaign could end as soon as today, as participants line up to hear which rulings the appeals judges will announce.

Some sources close to the case said the court asked for their fax numbers this week.

John Hendren can be reached at 206-464-2772 or