Justice’s hard times

It’s been a tough week for Department of Justice’s Microsoft trustbusters. Tuesday, the U.S. Court of Appeals for the D.C. Circuit lifted a preliminary injunction against the software giant, a decision that not only allows the company to bundle its Internet browser with its operating system, but that also rips the heart out of the government’s pending lawsuit. Today, Windows ’98 hits store shelves, each attractively boxed, thoroughly bundled upgrade an $89 thumb in the eye to Justice’s lawyers.

Most galling, though, has to be the knowledge that Bill Gates, declared the world’s richest person ($51 billion) on Monday by Forbes magazine, woke up Wednesday morning even richer. The nice little bounce Microsoft stock got from the court ruling added roughly $2.3 billion to Mr. Gates’ personal fortune.

Most folks would find an underlying cosmic message in such a confluence of events. But most folks don’t work for Janet Reno. Those who do say they are disappointed yet resolute; they remain confident in their broader case despite the appeals loss.

Trouble is, there is no broader case. Short of actually clubbing Justice upside the head with its 57-page ruling, the appeals court could not have made that point more clear. The court found numerous procedural and substantive errors by Judge Thomas Penfield Jackson in issuing the injunction that barred Microsoft from integrating its products. It overturned Jackson’s appointment of Harvard law professor and unabashed anti-Microsoftie Lawrence Lessig as a “special master” for technological matters in the case, properly objecting to the presence of a “surrogate judge.”

More importantly, and more damaging to the government, the court noted the fundamental undesirability of having the judiciary oversee product design and technological innovation, especially in an industry where products only get better, faster and cheaper — hardly the warning signs generally associated with the abuse of a monopoly position. The broader case, the appeals court said, putting it as gently as possible, “is unpromising.”

The broader case goes to court in September. The Justice Department, then, has some choices to make on how it spends the next two months. It can persist in the game-face, quixotic routine and guarantee itself further humiliation. Or, it could stop wasting its time and the taxpayers’ money, drop the case, admit it got suckered in by Microsoft’s grousing competitors and sit down with industry experts to gain an understanding of how the software business actually works and to develop real-world guidelines to ensure innovation is not stifled. To pursue this losing cause profits no one — no one except Bill Gates.