 | |
| |
TechnologyDaily Mobile
Two States May Tip Microsoft Antitrust Balance
With the Microsoft antitrust case settling into a new home at the DC Circuit Court of Appeals following the Supreme Court's refusal to take the case, most observers say they expect another year or more before the matter is finally resolved.
But even as both sides dickered last week over a court schedule, brief lengths and responses to District Court Judge Thomas Penfield Jackson's breakup order, the elongated time frame raises the stakes that decisions made this election will impact Microsoft's fate. Besides the obvious effects that a new president and attorney general would have on the lawsuit's endgame, including enforcement of any sanctions that are left standing after the appeals courts are done with them, the battleground in certain states also may be in flux.
Even as state attorneys general who joined the Microsoft lawsuit insist upon unity in their ranks, in two of the 19 of the states suing the software giant — Utah and North Carolina — candidates opposing the states' involvement in the case are likely to prevail. Utah Republican candidate Mark Shurtleff, who is leading in the polls, said that he thinks Microsoft has a good chance of winning and said he would pull out of the case unless he was satisfied that Utah consumers were being harmed. And in North Carolina, both the Republican and the Democratic candidates for attorney general have said they would reassess the states' involvement in the lawsuit.
For some of the most vociferous critics of the government's lawsuit, the potential defections are good news, particularly when the states have been positioning themselves as a counterweight to any shift in policy by the Justice Department's antitrust division.
"By educating voters and trying to target a number of attorneys general that could be influences, we may be able to create some kind of groundswell [against the case] in the event that the federal government drops off the case," said Erick Gustafson, director of regulatory policy at Citizens for a Sound Economy, adding that rapid changes in the marketplace ensure that "time is on our side."
Utah: Changes at Home for Microsoft Foes?
Utah and North Carolina see themselves as up-and-coming information technology centers, and their state governments have made strong pitches for Internet companies seeking to expand or relocate there. The possibility of a switch on the Microsoft case in Utah could be ironic. Utah is home to Republican Sen. Orrin Hatch, whose staff played a key early role in egging the Justice Department to take a more aggressive stance against Microsoft. Hatch has said that among his motivations for aggressively taking on Microsoft were complaints by Novell and Word Perfect, two software companies who have been bruised in run-ins with Microsoft.
In an interview, Shurtleff said that both companies had raised the subject in conversations with him. "I have heard from representatives of both [companies] saying that if you are elected, we want you to continue this action," he said. "But the government is not supposed to get involved to protect Novell and Word Perfect. They didn't seem very happy to hear that."
Shurtleff has been endorsed by Gov. Michael Leavitt, R, and leads by 15 points in the heavily Republican state, according to a poll conducted by Deseret News. He also has criticized outgoing Attorney General Jan Graham for attempting to join the state attorneys general prosecuting gun manufacturers, and said, "I don't like the way Utah has joined in a number of national class action suits. I distrust these nationwide cases and I think it is the wrong use of our positions — it is trying to make law by bringing lawsuits."
With regard to Microsoft, he said, "clearly my position is that antitrust laws are there only to protect the consumers, not to protect competitors. It is questionable as to whether they have acted [improperly.]"
Democratic candidate Reed Richards, who is currently the chief deputy to Graham, said that he saw no reason for change. "I guess I would have to see a good reason to change what the office has been doing," he told National Journal's Technology Daily. "It is kind of midstream, it would seem to be jumping ship unless there were a compelling reason," he said.
North Carolina: Following South Carolina's Lead
In the North Carolina race for attorney general, both Republican candidate Dan Boyce and Democratic candidate Roy Cooper have called for a reexamination of the lawsuit in letters to members of Citizens for a Sound Economy (CSE), a Microsoft-funded group that has attempted to focus attention on the race. The group wants North Carolina to follow South Carolina Attorney General Charles Condon, who originally signed onto the suit but later dropped it. Current Attorney General Mike Easley, now stepping aside to run for governor, in June told the Charlotte Observer that he wasn't convinced "a massive [Microsoft] breakup is necessary."
In a letter responding to North Carolina CSE director Chuck Fuller, Cooper said that if elected "I plan to spend time with staff attorneys examining whether the breakup of the country's most successful software developer is best for North Carolina consumers. At this time, I am not convinced that that this is the correct course of action for North Carolina, particularly considering the important precedent it sets."
In his letter, Cooper also cited North Carolina's growing role in software development and sales as further reasons for pulling out of the suit. But spokeswoman Julia White tempered that assessment by saying, "He has no intention of stepping into office and immediately stopping the case" without examining whether the Microsoft's action had caused consumer harm.
Boyce likewise has called for a reexamination. "It appears that the Federal Government (with the state attorneys general jumping on board) is taking sides between competitors," he wrote in a letter to Kim Wattenbarger, another CSE activist. "Intruding in free enterprise and favoring one business competitor over another is not what government is all about," he said, adding that "the true monopolistic tobacco trusts and the railroad barons in the late 1890s and early 1900s bear no similarity to what Microsoft and other software developers do."
Claiming to Occupy the High Ground
States actively involved in the prosecution of Microsoft shrug off the potential impact of losing Utah and North Carolina. "Even if two were to leave, it wouldn't affect the case because there would still be 17 states remaining," Iowa Attorney General Tom Miller told National Journal's Technology Daily. Of the 19 states and the District of Columbia that have joined the suit, the only other attorney general slot to be selected this November is the position in West Virginia. The incumbent is Democrat Darrell McGraw, and he has no Republican opposition.
"We the states have been through so much that we know what we want and what we need," said Miller, who has been one of the leaders of the states' case. "We need some form of remedy that would change Microsoft's behavior in the kind of things that were litigated."
Miller added that if a new Justice Department wanted to settle, "the states would refuse, and the states would proceed on appeal."
In such a scenario, Miller said "we would be occupying the high ground, and you would see the Justice Department under pressure" to continue the lawsuit.
 | - by Drew Clark |
NEW FEATURE
-Advertisement-
-Advertisement-
-Advertisement-
