Antitrust law experts are still mulling over the implications of the huge decision handed down by the District of Columbia circuit court last week. A three-judge panel ruled 2 to 1 that the 1995 consent decree does not prohibit Microsoft from bundling Internet Explorer with Windows 95.
Just where the Department of Justice and lower-court judge Thomas Penfield Jackson will take the Win 95 case now is unclear. The appeals court reversed Jackson's ruling and removed Jackson's appointment of special master Lawrence Lessig from the case. And it has lifted the preliminary injunction issued by Jackson that forced Microsoft to unbundle IE from Win 95. But the case is not yet closed.
A Justice Department spokesperson said the government is still considering its options, including a re-hearing with a new set of judges, or even an appeal to the Supreme Court. On the other hand, the Justice Department may decide to pull the plug on the narrow Win 95 contract dispute and focus instead on the Windows 98 suit, which goes to trial in September.
Steven Calkins is a former Federal Trade Commission general counsel who now teaches at Wayne State University law school. He says circuit judge Patricia Wald, in her dissenting opinion yesterday, may have been trying to throw the Justice Department a lifeline.
"She was trying to suggest that there is still a way that [the Justice Department] could win. She was trying to suggest that ... facts could be developed that would allow [the Justice Department] to win this case on remand. And she was offering her own theory under which integration could be problematic."
Calkins says antitrust law is fluid, and it's particularly slippery when applied to technology products. So it's no surprise that the three-judge panel wasn't unanimous. But while the Justice Department prosecutors may have some fight left on the Win 95 case, he expects they'll cut their losses and move on the main event, the Windows 98 antitrust case.
The decision undoubtedly has Microsoft breathing easier, however.
"Does this give Microsoft carte blanche to do anything it feels like with Windows?" Calkins asks. "I don't think that would be a prudent course. On the other hand, [some] computer manufacturers have started to tinker with the desktop and [Microsoft] clearly is interested and cares about that. I would guess that [Microsoft's] willingness to grant such deals is probably different today than it was four days ago."