Blind Justice: time for Gates to see clearly

After two years of legal wrangling, a district court judge's Findings of Fact that listed 47 pages of law-breaking activity, and a final ruling that ordered divestiture, Microsoft still hasn't admitted it has a problem.

In his memorandum - released with the ruling on Wednesday night - Judge Thomas Penfield Jackson vented his frustration with the company.

"Microsoft as it is presently organized and led is unwilling to accept the notion that it broke the law or accede to an order amending its conduct," he wrote. "There is credible evidence in the record to suggest that Microsoft, convinced of its innocence, continues to do business as it has in the past, and may yet do to other markets what it has already done in the PC operating system and browser markets."

The view from Redmond could not be more different. In the aftermath of the ruling, Bill Gates not only refused to admit guilt, he accused the government of biting the hand that feeds it.

He said: "What today's ruling represents is an unwarranted and unjustified intrusion into the software marketplace, a marketplace that has been an engine of economic growth for America."

Unfortunately his outburst plays into Judge Jackson's hands, both for the enforcement of the conduct remedies and the divestiture. Jackson has labelled the company "untrustworthy", and has said it looks unlikely to change its behaviour voluntarily.

Most analysts are sympathetic to this view. According to Dan Kusnetzky, the vice president of systems software research at IDC, the software company is fighting this battle like a public relations war, rather than litigation.

"They have persisted in focussing on one of the many charges brought against them - the integration of the browser into the operating system - as though that was the entire case," he said. "This is about how they have acted in business relations in the past, it's about how they've set prices on their products."

US anti-trust attorney, Glenn Manischin, added: "It's been clear that the only remedy that will work is a break up, given Microsoft's predisposition for breaking the law."

The conduct remedies would only last for three years, as an interim measure while the company splits. The judge wants to avoid long-term and frequent intrusions into the software market by simply divesting the monster.

Microsoft is hoping either the US Court of Appeals or the Supreme Court will feel differently. But while an appellate court may differ on the remedies, neither court is likely to shoot down the Findings of Fact.

The company's arrogance did not go down well with one judge. If Gates presents the same face to the next court in the chain, he can expect to have it slapped in exactly the same way again.