Chief Judge Harry Edwards said of Jackson’s findings, which fill 200 pages, “I find no support for them.” Another judge criticised Microsoft for its appeal brief saying, “It seems like it was written for the jury,” because the company was re-arguing some of the facts which, he implied, were not open to dispute. A third judge backed this view.
A crucial part of the appeal is for the court to decide whether the bundling of Internet Explorer with the Windows operating system is a violation of antitrust law. A US antitrust professor, Bob Lande, told the news service CNet.com that this could be decided on the basis of one of two principles: that bundling would be legal if a theoretical customer benefit existed; or alternatively, that it would only be legal if customers demanded the bundling.
Lande explained that the government will likely argue that, under the latter interpretation, Microsoft must fail because people still download Netscape, the competitor to Microsoft’s internet browser.
However, Judge Stephen Williams said yesterday that the idea of customers not wanting the browser bundled with Windows “makes absolutely no sense.” Chief Judge Harry Edwards questioned the government’s lawyers over whether Netscape ever intended to produce an operating system to compete with Windows, saying he found no evidence that Netscape and Windows were direct competitors - meaning there could not be anti-competitive practices.
Commentators have noted partisan differences in the approaches of the judges, three of whom are Democrats, four of whom are Republicans.