Press Release of Pro Competition.
Re: Robert Bork's statements regarding appeal prospects in the Microsoft case.
Date: April 4, 2000.
Source: Judge Robert Bork, American Enterprise Institute.

APPEALS COURT UNLIKELY TO SAVE MICROSOFT, SAYS JUDGE BORK

At a press conference today, former U.S. Circuit Court of Appeals Judge Robert H. Bork said the appeals process is unlikely to overturn the District Court’s finding that Microsoft is a predatory monopolist.  “The prospects that Microsoft can reverse this decision are slim,” he said.

Judge Bork, who once remarked that Microsoft has used tactics “that would make a robber baron blush,” described the Microsoft case as “highly politicized.” He told the reporters that “Bill Gates is trying to win this in the political and PR arena rather than in the legal arena.”  Judge Bork said that as a legal matter, the Appeals Court can only overturn Judge Thomas Penfield Jackson’s findings of facts if it determines they are “clearly erroneous.”  And Bork said, “they are not erroneous.”

Bork went on to say that even if the Court of Appeals disagreed with Judge Jackson on the Section 1 tying claim, it would have “almost no impact on the case.  The important point is that this is a violation of Section 2 – monopolization and attempted monopolization.”

Judge Bork criticized the notion that antitrust should not apply to the software industry. Without antitrust law, the only thing that would control unbridled monopolization in the software industry would be government regulation.  Antitrust enforcement “is clearly preferable” to regulation. In this case all the court did was “apply conventional antitrust principles to a new industry.”

“Some people who identify themselves with the Chicago School think it’s a mood rather than a method of economic analysis – the mood being that big companies can do no wrong.  I was one of the first in the Chicago School; what I’ve written is that there are forms of predation that should be illegal.  And I think this is one of them.”

When asked whether Microsoft’s strategy of delaying final action until the next Administration could succeed, Bork said, “I can’t believe the Democrats would drop the case.  And I can’t believe Republicans would, either.  Republicans would be vulnerable to charges of favoring big business if they did so.”

While Judge Bork did not make a specific recommendation on a remedy, he did point out that shareholders benefited from the breakup of Standard Oil and AT&T.  Maybe Microsoft shareholders “should be rooting for the government at this point,” he added.

A replay of the press conference will be available from 7 pm EDT tonight until 12 am on April 6 by calling (888) 203-1112, Passcode 279195.  A complete transcript will be available beginning at 1 pm EDT on April 5 at ProComp’ s website: www.procompetition.org.