What The Ruling Means

Actress Judy Davis attends the 2003 TCA Press Tour on January 8, 2003 in Hollywood, California.
GETTY IMAGES/Frederick M. Brown
Don't be surprised if Microsoft's officers and lawyers actually are relieved now that Judge Thomas Penfield Jackson finally has lowered the boom on the company and ordered it split in two. At least now Microsoft's leaders finally know precisely what they are up against and what specifically they need to argue to the appeals judges who will have the final say in whether today's remedy ruling lasts for months or for decades.

Until today, Team Microsoft could only guess at the exact remedy - and exact legal terminology - Judge Jackson would choose in imposing his remedy on the company. But lawyers cannot base their arguments on forecasted decisions or speculated results. That's why even though Microsoft knew this remedy was coming - knew at least that Judge Jackson was leaning heavily in this particular direction - the company actually needed him to take this final step in order to prepare itself for the next big battle.

And it will be a big battle or, more precisely, an uphill battle for the big company. Judge Jackson was no less sparing of the company in his language than he has been throughout this case. He called Microsoft "untrustworthy," and wrote that it was "unwilling to accept the notion that it broke the law or accede to an order amending its conduct."

Harsh words from a judge who was willing to impose such a harsh remedy because he apparently has no confidence that anything short of such a remedy will make Microsoft do what he believes it has a legal obligation to do. But the judge did the company a favor as well.

He entered a final judgment in the case which will allow the company to appeal the order even while Microsoft is required to work on its own breakup timetable. Unless the company is successful in getting a stay of the order, an unlikely but possible scenario, the order as written will allow the case to be resolved sooner rather than later.

Now, to that appeal: Microsoft is likely to appeal most of the judge's major rulings against it in this case over the past few months. But appellate judges usually give trial judges much more deference when reviewing factual findings as opposed to legal conclusions. That means that Microsoft is much more likely to gain success on appeal by focusing on the legal standards - and remedy - applied by Judge Jackson than by focusing upon the factual findings the judge made last November, findings that the company is a monopoly.

I suspect that Microsoft's appeal will reflect that legal reality. Instead of focusing primarily on trying to convince the appeals court that Judge Jackson wrongly labeled the company a monopoly, Microsoft will instead focus upon convincing those judges that Jackson incorrectly applied the law to his factual findings and incorrectly chose a remedy that neither solves the purported problem nor is warranted in light of those problems. That's about the best strategy the company has at its disposl given how one-sided the case has been so far.

The appeal itself may take years to resolve, even if the government successfully skips the regular appellate process and gets the case directly before the Supreme Court, as Justice Department lawyers were suggesting after the ruling was made public. The Supreme Court would look at Judge Jackson's findings and conclusions as would any other appellate court.

That means that the High Court could remand the case - return it to Judge Jackson - with instructions to him to hold more hearings or reconsider some aspect of his many decisions. And then after that reconsideration or those hearings the case could wind its way back to the Supreme Court and back down again for a variety of reasons.

Appellate procedure is complicated, in other words, so that even if every step in this process is expedited, it's likely to be at least a year or so before we know for sure whether Microsoft is, indeed, going to be split in parts.

Judge Jackson's remedy ruling is a big step in resolving this case one way or the other. But it is only one step. And it is by no means the last step.

Written by Andrew Cohen