Expert tells Jackson appeal-proof verdict can be reached

The most difficult challenge for Federal Judge Thomas Penfield Jackson is not

finding Microsoft guilty of violating antitrust laws, but on wording his verdict

in such a way that it doesn't get overturned on appeal by the same three Appeals

Court judges that threw out Jackson's 1998 conviction of Microsoft.

Jackson has enlisted the help of Harvard Law Professor Lawrence Lessig, an

expert on applying laws in cyberspace. Lessig submitted a 44-page report to

Jackson this week that concludes that the earlier Appeals Court ruling doesn't

necessarily cover the issues at stake in the government's current antitrust

lawsuit. Legal analysts have long believed that Microsoft put up a weak defense

in the new antitrust case because the company beliefs it will be able to get any

conviction overturned on appeal by arguing that the current case is merely a

rehash of the issues in the 1998 case. The Appeals Court at that time sided with

Microsoft in ruling that the court had no business dictating what Microsoft can

and cannot do with its software. Jackson had ordered the company to make a

version of Windows 98 available that would not be integrated with the Internet

Explorer.

In his report, Lessig suggests several ways Jackson can formulate his verdict

so that it will not clash with a 1998 Appeals Court ruling. Lessig proposed that

Jackson uses a four-part test that he devised to determine whether software

products can be legally combined. Lessig said that in his opinion, Microsoft

would fail such a test and thus be guilty of antitrust law. Microsoft spokesman

Mark Murray responded to the Lessig report saying that the earlier appeals

ruling, "on a virtually identical set of issues, should dictate that part of

the judge's verdict in the current trial. Court of appeals decisions are not

optional. The government already made all these arguments, and the appeals court

shot them down."