Microsoft privately briefed that it was a 'pragmatic company' that had settled in previous cases, even when it thought it was right. Following the filing of briefs over the last three months, the oral arguments today are about the proposed legal findings of fact that the judge will make. This is the last chance for Microsoft to try to convince the court that the monopolist has not monopolised illegally, and it looks like uphill work. The DoJ has confined its case to its claim that Microsoft has contravened sections one and two of the 1890 Sherman Antitrust Act. Microsoft mostly believe the Act should be scrapped, while Microsoft's foes claim that the Act has not become outmoded.
Reality suggests that what is outmoded is the speed of the judicial procedure.
It's worth recalling that the present case was started in May 1998 after an abortive contempt action that started in October 1997 when the DoJ tried to blow the whistle on Microsoft's cavalier disregard for the Consent Decree. If there is to be a settlement, it would be in Microsoft's interest for this to be before any judicial finding that it had transgressed the Sherman Act, but any adverse findings are embarassing rather than painful. Based on his previous speed, it may reasonably be expected that Judge Jackson will deliver his opinion in March or April, and call for further briefs on proposed remedies, with a timetable of some three months. This would take us to around July, with his Order in the case being delivered in the autumn. Microsoft may well appeal the findings of law, hoping to buy itself enough time to delay the case until after the presidential election, with the rather slim chance that an incoming president would appoint a new attorney general who would be more amenable to settling the case on more favourable terms for Microsoft.