.... or at lease not yet.  In all fairness to Microsoft they have yet to call any witnesses.  And, the guy who has been shown in some video clips does not appear to know much at all about the company he claims to run.

So far however, guessing from the questions asked of the DOJ witnesses, Microsoft wants to claim that if they combine the source code for two products (a task any programmer can do with any two programs picked at random) they can avoid any and all charges of antitrust violations.  Or, in the case of Java, if they can just show that better software was a good idea, better software is a defense for breach of contract and a defense for antitrust violations.  Java from Sun being lousy is no more of a defense than Java from Microsoft being perfect, assuming that were the case.  The quality of the two products is just not relevant.  It does not matter which product is perfect nor which product is horrible.  What matters is what Microsoft did and why they did it.

The antitrust laws were passed for the specific purpose of preventing a company having monopoly power from abusing that power to 1) either harm consumers directly by over charging for products or requiring the purchase of other products; or 2) blocking, precluding or preventing competitors from offering their products to the market or simply degrading or sabotaging the products and trademarks of other companies.

Adopting any business plan to sabotage the product or trademark of another company is always suspect.  When a company does so and has monopoly power, that act may very well violate the antitrust laws (even if the product produced is perfect).  Perfect products are no more a defense to antitrust charges than high quality bombs or pistols are to a murder charge.

Microsoft has clearly done both (I.E. directly harmed consumers and sabotaged property of other companies).  But, they will have their chance to call witnesses.

Only Microsoft can tell us why all consumers must purchase IE regardless of their needs or wants.
Only Microsoft can tell us just how much they are charging customers for IE.
Only Microsoft can tell us why a monopolist who is overcharging for an OS can not figure out how to sell a so-called quality product on its own merits.
Only Microsoft can tell us how they charge more for features as added to their OS but claim that IE does not increase the price to consumers.  (This is the one I really want to hear.)
Only Microsoft can explain how it is logical to charge for the OS that everyone must buy but not charge for the IE that everyone must buy.  (They are in the same box and no customer has a choice.)
Only Microsoft can tell us why it was necessary that their Java not run on any system other than a Microsoft platform.
Only Microsoft can tell us why it was necessary to fragment Java and prevent universal applications if Java is lousy (as they suggest that it is).
Only Microsoft can tell us why it was necessary (apparently) to breach a license agreement for Java.

There are a lot of questions only the witnesses for Microsoft can answer.  Their attorneys can not answer them. They are not witnesses.  The PR department can not answer them.  We do not even know just who they are.  The judge wants to hear from witnesses testifying in court.

If Microsoft is only to claim in court that they were acting to provide better features to a few select customers, that will not work.  In PR releases and advertisements you can pretty much say anything you want to say.  Misleading advertisements are common from Microsoft as well as other companies.  But, in court, questions get to be asked.  And the judge does not want any "rope a dope" stuff.

If Microsoft is going to put a witness up on the stand and suggest that consumers are not being charged for the copy of IE they are required to buy, that witness better have a plausible explanation for that claim.  Any economist (and I suspect anyone in the computer software industry) knows that if you know you can sell a product to hundreds of millions of customers, you have absolutely no reason to not charge for it.  None at all.  I have written upon numerous occasions that Microsoft has no reason to not charge for IE.  Companies with monopoly power just do not have to give away attached products. It is illogical to even think of it. Some of the witnesses to be called have said point blank that Microsoft charges more as features are added to the OS.  We will see if they repeat that claim in court. And, Steve Ballmer (not a witness) has pooh-poohed the logic of giving away software.  He is right.  It is illogical.

I fully understand why Microsoft would claim IE is a free product.  But, it is just as likely that Microsoft is charging $200 for IE and the OS is free.  The money is the same.  All customers have to buy it either way.  But, if consumers thought they were paying $200 for IE, consumer reaction to the marketing campaign by Microsoft would be dramatically different.  Amazing what a little deceit can do.  Deceit does help to sell products.  It might be consumer fraud, but it is a very effective process.  Just lie about the allocation of cost among the products in the box.  Consumers are gullible.  They think they got a free one.  Bill Gates and Steve Ballmer (and I suspect a few other employees from Microsoft) know better.

So.  We shall see.  Microsoft can call its witnesses.  Then we will find out what defense Microsoft plans to use.

Microsoft might claim it has the legal right to force all consumers to buy IE (or any other application of its choosing) if it just mixes up the source code so that it can not be uninstalled.  Maybe they will actually do that?

Microsoft might claim it has the right to force all consumers to buy a given application if they can show that at least one or two of the millions of customers required to purchase the product actually gains some benefit.

Microsoft might claim that Netscape customers gain some benefit from being forced to buy a copy of IE.  They might do this.  (This is another question I would really like to hear answered by a Microsoft witness.  I mean, there must be something that just escapes me.)

Microsoft might claim it has the right to force the sale of any application to all if some customers  want it?  (I have never questioned the fact that some of Microsoft's customers actually want to buy IE.  After all, it is browser application.)  But, Microsoft must explain why everyone must buy it.  Software costs money.  So, making all consumers buy IE really does need to be explained.  Businesses without modems on their systems are really going to be interested in why they should be forced to buy IE.

Microsoft might even claim that their company should not be subject to selected laws?  Does anyone really suggest they would claim that?  Besides, who would pick the laws that Microsoft could ignore?  And, if Microsoft can ignores laws, can AOL ignore the same laws?  Or IBM?  Or, Intel?  Should Intel be permitted to modify its chips so that IE would no longer run forcing all Microsoft customers to buy the Netscape browser?  This could easily be done.

If Microsoft really does not like the antitrust laws, arrangements can be made.
 
In the meantime, we will just have to guess.

Lewis A. Mettler, Esq.