Well, what’d you expect him to say?

Given the chance, Thomas Penfield Jackson would order Microsoft split in two again.  In remarks delivered at an American Antitrust Institute conference, Jackson, the former judge whose decision to carve up Microsoft was overturned in 2001, said mandating a divestiture of Microsoft’s operating systems division from its software applications is still the only way to curb the company’s anticompetetive behavior. "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." Ironic, isn’t it, to see Jackson still talking smack about Microsoft – especially since it was such behavior that got him tossed off the case in the first place. In 2000,  the U.S. Court of Appeals for the D.C. Circuit  overturned Jackson’s divestiture order, finding that he had
behaved in a manner that "would give a reasonable, informed observer cause to question his impartiality in ordering the company split in two." The court’s evidence: Jackson’s penchant for ex parte contacts — in particular a few interviews granted to the media in which he compared Microsoft’s repeated claims of innocence to "the protestations of gangland killers," described Microsoft’s chief legal advisor William Neukom as "not very smart" and a proposed remedy of his own devising that involved requiring Bill Gates to "write a book report on the biography of Napoleon."


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  • First of all, this was not an ex parte communication. For that he was stupid and we have all suffered.

    Abuse of market dominence has become even more a part of the Microsoft business model that it was before the DC Circuit Court decision.

    A Lexis/Nexis search will reveal that Microsoft has engaged in increasing levels of patent infringement, theft of intellectual property and stiffiling competion by early announcements of products that do not exist [vaporware]. Given Microsoft’s market position and cash such behavior is the type of conduct the antitrust laws were designed to prevent and punish.

    Since no court has been willing to fine Microsoft at the levels that would inflict real monetary pain, it has become economically and financially advantageous for Microsoft to continue to behave in ways the Judge Jackson condemned and merely either settle or pay a small judgement.

  • M. F. Ware

    Judge Jackson was correct then and he is correct now. The appeals court used a flimsy excuse to overturn Judge Jackson’s remedy. The appeals court agreed that Jackson’s finding that Microsoft was an illegal monopoly was correct. There was no finding that his remedy was based on bias. It found only that the judge spoke out of turn. Judge’s routinely express much harsher opinions from the bench. But rather than reprimanding the Judge, the court of appeals denied the United States Government the fruits of a hard-won victory.

  • exOEM

    Foolish he was to have spouted off. The predatory business practices of Microsoft are precisely the modern day equivalent of those that led to the original anti-trust laws. What came out at the trial only scraped at the surface of the truth. The enormous leverage held by MS over the biggest OEM’s of the day prevented a more thorough (and damning) account from being heard. I know. I was there.

  • Eric

    Geez you guys must read a lot of anti-Microsoft stuff.

    Try to remember that Microsoft CREATED the personal computer industry. They created the platform and then got developers to create the applications on top of it.

    Patent infringment, IP theft, predatory business practices, etc… give it a rest… its not true. Microsoft is just running their business in the industry they own. Yes… they own it.

  • David Binkerd

    ” . . . split in two again.” But does that mean as in “quartered?” Or does that mean the judge, if he had it to do over again, would once again split Microsoft in two?

  • Eric

    It means he still believes Microsoft should be split into OS / Apps. It wasnt split up before and probably never will be, unless its by choice.

  • Shawn

    Things have only gotten worse … and the Bill & Steve show … has now accumulated the power to exploit and/or destroy people and businesses around the globe.

  • Gerald Greb

    Microsoft should have been broken up, no ends no butts. But money talks and Mr Bill has that in spades. Personally I have moved to a Mac and OSX 10.3 just to get away from windows.

  • And how is Apple any different from MS, Gerald? They were the vertical monopolist of choice before Windows was Gates wet dream. They are now playing the monopolist with their ipod technology.

    SCOTUS couldn’t penalize Jackson on this case. They can’t risk attacking the presumption of judicial immunity. Overturning decisions is like grading homework. Penalizing judges threatens the supremacy of the kings in black robes. Speaking of monopolies….