Pact shows industry moves faster than wheels of justice

It started with the best of legal intentions - a six-week, fast-track legal solution to the biggest antitrust lawsuit for a generation. But at the end of the sixth week of the Microsoft monopoly trial, the US government is just halfway through its witnesses, and the defence has yet to reply with its own.

Judge Thomas Jackson appears increasingly frustrated and bored with the slow proceedings. His somnolent lapses of attention have become more frequent over the past two weeks as Microsoft has engaged in an almost forensic cross-examination of the first economist to testify in the trial.

The judge had crafted a specially expedited trial to prove that antitrust trials could move as quickly as the software industry. In place of long direct statements, witnesses submit written testimony before going straight into cross-examination by their opponents.

But the industry has proved itself far more nimble than the legal system. Three of the leading companies in the government's case Netscape Communications, America Online (AOL) and Sun Microsystems - became formal allies this week as part of AOL's $4.2 billion purchase of Netscape.

For the US government, the deal merely underlines the consistent theme of the trial: Microsoft's monopoly power - based on its ubiquitous Windows operating software dominates and shapes the entire industry, forcing potential rivals either to submit to its demands or to be taken over.

The evidence from the US Justice Department and 20 states sets out to show a pattern of coercive behaviour by Microsoft against Netscape, AOL, Apple Computer and Intel.

For the US government, the greatest challenge lies less in proving the facts than designing a legal solution to perceived abuses of Microsoft's market power. Its lawyers have been conspicuously silent about what remedies they would like Judge Jackson to impose on Microsoft, if he finds against the company.

But as this week's industry merger has shown, the pace of change among Internet concerns moves so fast that it may be hard for the court to identify solutions which affect Microsoft's rivals. After all, Netscape, the alleged victim of Microsoft's abuses, will no longer exist as an independent company by the end of the trial.

The only constant target is Microsoft itself, and the increasing temptation for the US government is to design a sweeping solution which substantially reins in - or even restructures the software giant.

Netscape, Apple and Intel all say Microsoft tried to carve up the market in various forms of software, and used bullying tactics to intimidate them into agreement. AOL's evidence underlines the source of Microsoft's power - its control over Windows - and its ability to offer rivals unparalleled access to personal computer screens everywhere.

But Microsoft has been able to punch holes in parts of all these allegations. In particular, it has questioned the credibility of Intel's witness, Mr Steven McGeady, who was presented as a rogue employee of the world's largest chipmaker. Microsoft also managed to undermine the more emotional claims that it "sabotaged" Apple's software.

Microsoft has enjoyed still greater success in questioning the government's two expert witnesses to date. Both Mr Glenn Weadock, a computer consultant, and Mr Frederick WarrenBoulton, an economist, have appeared ill-prepared in defending their underlying data.

But the most explosive evidence has come from Microsoft's own internal emails about rivals and potential rivals. Microsoft executives have repeatedly undermined its defence with explicit statements of their intent.

One executive wrote to Mr Gates that his intention was to "establish Microsoft ownership of the Internet client platform for (Windows 95)", which appears to confirm claims that it illegally sought to carve up the market in Internet browsers. Several executives who wrote the most damaging emails will appear as witnesses for Microsoft early in the new year.