Game of delay

Microsoft's lawyers insist they'll win big on appeal. But they're also in no hurry to get to the appeals court - they want six more months to explain why breaking up the company is a bad idea.

It’s not so hard to understand Microsoft's legal strategy. Microsoft's lawyers insist they’ll win big on appeal. But they’re also in no hurry to get to the appeals court — they want six more months to explain why breaking up the company is a bad idea.

But if they’ll win on appeal anyway, why take all that time? Because you never know what might happen. An appeal is risky — you might lose. But in the meantime, a new president might tell the Justice Department to dump the case. The state attorneys general might go back to chasing Big Tobacco. A judge might drop dead. It might be an ugly victory — but a good lawyer would rather win ugly than lose pretty.

So Microsoft’s strategy is to win on appeal — but delay that appeal as long as possible. Delaying is standard legal practice. It’s probably good legal strategy.

But three things make it a very, very risky business strategy for Microsoft.

First is Microsoft’s sinking stock price. Forget that Microsoft no longer has the biggest market capitalisation and that Bill Gates might stop being the world’s richest man. That’s trivia.

What matters is that since December, Microsoft’s market collapse has cost mutual funds and other institutional investors $US118 billion. And the stock isn’t rebounding from the guilty verdict and the breakup proposal — it’s edging lower. That is not a trend big investors like.

Nor do they like Microsoft’s ho-hum earnings last quarter. This company used to smash analysts’ estimates and double its stock price every year. Now the stock drifts and earnings barely meet expectations.

If big investors bail on Microsoft, the price will fall even more. And that capital will flow to Microsoft’s rivals, old and new — big enemies like IBM, Sun Microsystems and Oracle and small start-ups that could carve the ground from beneath Microsoft’s feet. And lower prices will make options less effective in hiring new talent and make the stock a cheaper currency for acquiring new technologies.

The second factor is the public. People like Microsoft, really they do. Poll after poll indicates they like Microsoft better than the Justice Department, and they don’t want Microsoft broken up.

But in the latest Gallup poll, though most people still oppose a breakup, they now say a breakup would be good for the economy. And for the computer industry. And for consumers.

In other words, the public likes Microsoft — but is starting to believe breaking it up would be a good thing. Another six months of that trend won’t be healthy for Microsoft either.

The third factor? Technology itself. Microsoft gives lip service to the idea that any competitor might topple it at any time. That’s hogwash — but with dozens of competitors attacking successfully on a dozen fronts, while Microsoft’s top strategic brains are doing lawsuit damage control, Microsoft is at risk.

Linux carves into NT’s turf. Palm dominates in handhelds. America Online stomps all over Microsoft in instant messaging. Microsoft can’t get a foothold in business-to-business exchanges or high-end enterprise software.

Y2k lockdowns gave Microsoft breathing room — nobody was buying new technology. But now, every day Microsoft is distracted by the antitrust case is running room for all those competitors, and they know it. They don’t have to catch Microsoft — just outrun it.

So, good legal strategy or not, Bill Gates and Steve Ballmer should think very, very carefully about whether delays will deliver what Microsoft needs. Between the stock price, the public and technology, dragging this case out may be much more dangerous for Microsoft than just getting it over with.

Hayes, staff columnist for Computerworld US, has covered IT for more than 20 years. Send email to Frank Hayes.

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