If that push fails, Microsoft loses the battle of its life. If it succeeds, the company will be guaranteed a heavyweight title on the Web that could match its supremacy on the desktop.
Speaking in February before a crowd of 200 journalists at the National Press Club in Washington, Sun Microsystems CEO Scott McNealy, who rarely passes up an opportunity to bash his Redmond, Wash., rival, urged the Bush administration to continue to push the antitrust case against Microsoft. "I'm the only one who can stand up and tell the truth," McNealy said, because Microsoft customers are "scared to death." He added: "I don't believe in pardon. I believe in personal responsibility."
McNealy can be forgiven for his chagrin. In 1998, Sun paid at least $3 million to fund a team of legal experts that helped persuade the Justice Department to file suit. McNealy got his money's worth – at first. Judge Thomas Penfield Jackson delivered a withering judgment and ruled that Microsoft had abused its monopoly position to exclude rival software illegally, specifically Netscape's browser and Sun's Java. As a remedy, Jackson ordered the company split in two.
But in the appeals court, the government's momentum slipped away, as appellate judges seemed skeptical of Jackson's rulings and concerned about possible prejudice. (In the press, the federal judge had characterized the 5-foot 10-inch Gates as having a Napoleonic complex.) The appeals court decision, which should come down within the next few months, could return the case to the lower court with a new judge and less bite. At that point, with everyone – not least the new Bush administration – looking for a way out, a settlement seems likely.
The upshot is that Microsoft, months after being faced with government-sanctioned dissolution, could in the end get away with a wrist slap.
That prospect galls longtime critics, who foresee Microsoft reverting to its old ways. Ransom Love, CEO of Linux company Caldera Systems, says if the case were thrown out, his company "would feel the brunt of their illegal business practices."
Yet the primary reason for the spring in Gates' step isn't the trial turnaround; it's the technology.
