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Where Microsoft and the DOJ Go From Here

Plus, Seymour handicaps the outcome of the epic court battle.
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Yesterday's wrangling in U.S. District Judge

Thomas Penfield Jackson's

court in Washington, D.C., went better than expected, given the playground-fight tone of the proceedings so far. We saw handshakes and even occasional smiles among some of the combatants. After the crowds for earlier sessions, Tuesday's less-than-full courtroom, with no waiting line for admission, was one measure of how tedious this circus has become.

David Boies, lead counsel for the

Department of Justice

in its antitrust action against



, recalled the Microsoft sins that he'd claimed at trial, and that Judge Jackson had included in his findings of fact, issued in December.

With a flourish, Boies claimed Microsoft had "used its monopoly power to induce, threaten, bribe and coerce'' its competition and partners.

In its turn at bat Tuesday, Microsoft shifted somewhat from its earlier "you're one, too" stance to a more sober discussion of issues. Noting that Lawrence Lessig, the

Harvard Law

prof who had filed a friend-of-the-court brief, had said that otherwise-illegal "tying" of products together by a monopolist -- one of the claims against Microsoft -- could be legal if there was a presumptive benefit to consumers, Microsoft lead counsel John Warden pressed hard on the "plausible benefits" argument.

Anyone listening between the attorneys' words for a hint that the still-ongoing settlement negotiations in the case, being supervised by Chicago U.S. Circuit Court Judge

Richard Posner

, were bearing fruit came away empty-handed. I have thought for a long time that Microsoft would find a way to settle out of this mess, but I'm changing my mind.

Oh, to be a fly on the wall in that Chicago conference room!

But absent that, I think that chances of a settlement are being scuttled by the state attorneys general, who joined the federal action and who are, in best state-politics fashion, pushing hard for a Pyrrhic victory: Burn Microsoft to the ground, and just watch it try to rebuild. (The analogy is apt. Pyrrhus, king of Epirus, part of ancient Greece, kept launching wars against the Romans, whom he generally defeated, but at such a terrible cost to his country and people that eventually the Greeks turned against him. Anyone who hears in that an echo of a Department of Justice many think is out of control on this matter is welcome to their own conclusions.)

Following Tuesday's oral arguments and rebuttals, Judge Jackson will retire to his chambers to consider his final ruling and remedy for Microsoft's bad-boy behavior. That, court observers say, could take weeks or months.

But I don't think it will.

Jackson has had a long time to think about this already. Even setting aside the year-plus this matter has spent in his court already and assuming he never gave a thought to remedies until he posted his findings of fact in December, I think it's clear Jackson knows what he wants for an outcome here. And throughout, Jackson has been pushing hard to get to end this matter expeditiously.

So I think we'll be hearing from the judge in just a couple of weeks -- maybe even sooner. I'll be floored if he takes as long as a month to deliver his final ruling.

How would I handicap the outcome? What does it mean for investors?

Click here to read the conclusion of this column.

Jim Seymour is president of Seymour Group, an information-strategies consulting firm working with corporate clients in the U.S., Europe and Asia, and a longtime columnist for PC Magazine. Under no circumstances does the information in this column represent a recommendation to buy or sell stocks. At time of publication, neither Seymour nor Seymour Group held positions in any securities mentioned in this column, although holdings can change at any time. Seymour does not write about companies that are current or recent consulting clients of Seymour Group. While Seymour cannot provide investment advice or recommendations, he invites your feedback at