[Congressional Record Volume 146, Number 116 (Tuesday, September 26, 2000)]
[Senate]
[Pages S9255-S9256]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            MICROSOFT APPEAL

  Mr. GORTON. Mr. President, the Supreme Court, with eight of nine 
Justices concurring, has just agreed with Microsoft that the notorious 
prosecution of Microsoft by the Department of Justice should go through 
the normal process of appeal and should be determined and should be 
examined by the District of Columbia Circuit Court of Appeals before 
any possible or potential appeal to the Supreme Court of the United 
States.
  This was a correct decision for a number of reasons, not the least of 
which is the complexity of the case and the length of the record which, 
under almost any set of circumstances, would go through the normal 
appeals process.
  The district court judge who decided the case and who has determined, 
I think entirely erroneously, that Microsoft must be broken up, wished 
to skip the District of Columbia Circuit Court of Appeals, stating that 
this matter was of such importance that it should go directly to the 
Supreme Court. The real motivation of the lower court, I suspect, 
however, was the fact that one of the vital elements of the district 
court's decision is directly contradictory to a decision of just about 
2 years

[[Page S9256]]

ago by the District of Columbia Circuit Court of Appeals--the 
integration of a browser/Microsoft operating system, a major step 
forward in technology and convenience for all of the purchasers of that 
system.
  It is easy to understand why the district court judge didn't want to 
go back to a higher court that he had directly defied, but that is no 
justifiable reason for skipping a District of Columbia Circuit Court of 
Appeals, and the Supreme Court, I am delighted to say, agrees with that 
proposition.
  This matter is now on its normal way through the appeals process, a 
process that I am confident will justify, in whole or in major part, 
the Microsoft Corporation, but only at great expense and at a great 
expenditure of time.
  Once again, I call on this administration or on its successor to see 
the error of its ways in bringing this lawsuit in the first place. It 
has been damaging to innovation in the most rapidly changing technology 
in our society, one that has changed all of our lives more profoundly, 
I suspect, than any other in the course of our lifetimes. It is 
immensely damaging to our international competitiveness, encouraging, 
as it does, similar lawsuits by countries around the world that would 
love to slow down Microsoft's competitive innovation so they could 
catch up.
  This is a field about which 10 or 15 years ago we despaired. Today, 
we are clearly the world leaders. For our own Government to be hobbling 
our own competitiveness is particularly perverse. It opens up the 
proposition that innovations in software will have to be approved by 
Justice Department lawyers before they can be offered to consumers in a 
way that seems to me to be perverse.
  It doesn't take a great deal of courage to say that I trust Microsoft 
software developers in their own field more than I do Justice 
Department lawyers. At best, this was a private lawsuit, effectively 
brought on behalf of Microsoft competitors but being paid for by the 
taxpayers of the United States, where it should have, had it gone to 
court at all, been just that--a private lawsuit in which the Federal 
Government had little or no interest.
  So, good news from the Supreme Court but news that can be greatly 
improved by a new administration's fresh look and the dismissal of its 
case in its entirety.

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