Excerpt #1, U. S. Court of Appeals, February 27, 2001
"Let the Bitch Slapping Begin"
Appeals Court Judges try to Figure Out what DOJ means by "market"

 
What happens when your case is filled with bad facts?
(Image from www.bitchslapped.com)

The text in the (red font and parenthesis) is my interpretation of what is going on in the minds of the Appeals Judges as the DOJ presents their case. For the third time in six years, let's take a look at how the Appeals Judges "bitch slap" the government's case against Microsoft.  Mr Frederick is the guy representing the DOJ in the Court of Appeals, since Klein and Boies ran off when they had to argue against the big boys.

In this Excerpt, the DOJ is telling the Court of Appeals how Microsoft attempted to "monopolize the market". The wise judges on Court of Appeals is trying to figure out what the DOJ means by "market".

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THE COURT: Good morning.

MR. FREDERICK: The District Court properly held Microsoft liable under Section 2 for attempted monopolization under both of the theories Microsoft counsel discussed. And I'd like to start with the June 1995 negotiations because, although there was some lack of clarity in the District Court's discussion on this point, the evidence underlying the findings between .. on this point are quite clear.
Microsoft came to this meeting with the purpose of getting Netscape to, quote, cede the client. The e.mail traffic makes perfectly clear that when the meeting concluded, Netscape wanted to ensure that, quote, the test of this alignment with Netscape will be Netscape's agreement to use Microsoft's client code on Win 95. That's Government Exhibit 536.
Now, what that means is at the time of this meeting, Netscape had approximately 80 percent market share. They were selling this product. They were licensing it as a product. There was a market for this product. And the citations to indicate what that market was are contained in the footnotes of our brief at pages 92 to 94.
There are three fact findings by the District Court I would direct the Court's attention to, with respect to the definition of this market: Fact Finding 16, which explains what a Web browser is; Fact Finding 150, which explains the consensus in the software industry as to the functionalities a Web browser offers; and Fact Finding 201, which explains why consumer demand creates, quote, a market for Web- browsing functionality.

THE COURT: How do you explain Fact Finding 88? (Translation: Screw the facts you are referencing, explain to me what the hell is meant by Fact 88)

MR. FREDERICK: Well, Fact Finding 88 simply says that Microsoft would have controlled the technology ..

THE COURT: Which technology?

MR. FREDERICK: The technology that underlay the browsing functionality.

THE COURT: Had Netscape accepted Microsoft's proposal, it would have forfeited any prospect of presenting a comprehensive platform for the development of network.centric applications.
The District Court has flipped back and forth on the definition of the relevant market. And counsel on the other side(meaning Microsoft) is exactly right. And it's very interesting when you said you were going to go to the findings. You all have embraced the findings comfortably, and you've run from them here.
The findings on this issue are not the ones that you've pointed us to. The findings on this issue are in the 80s. And those findings are absolutely unclear as to what the relevant market is that we are talking about, and there are sleights of hand going on here as to whether we are talking about a browser market or whether we're talking about what we were talking about yesterday; that is, the platform market. Eighty-eight is the platform market. (Translation: What the fuck were you guys thinking about, distorting the facts in front of us Court of Appeals judges?)

MR. FREDERICK: Your Honor, I think it's important to distinguish several different points here. The citations on pages 91 to 92 and the accompanying footnotes of our brief explain exactly what the market is. I will concede to you that the District Court did not explain with the clarity that would be desirable what the market for browsing software is.

THE COURT: Does that mean the District Court made no appropriate finding of the relevant market?

MR. FREDERICK: I beg your pardon?

THE COURT: The District Court made no appropriate finding of the relevant market. (Do I have to repeat myself to you?)

MR. FREDERICK: I would concede that, Your Honor.

THE COURT: Okay. (God Damn, these DOJ guys and Judge Jackson are dumber that we thought)

MR. FREDERICK: My point is ..

THE COURT: Which is essential in this area. (This is crucial, let's see if the DOJ can get it right)

MR. FREDERICK: It is essential, although the Court can affirm if it finds evidence in the record to support the conclusion of law which the Court drew that there was a market for this product.

THE COURT: Without a finding as to the relevant market, we could affirm? (Uhh..you want us to confirm and agree with something about the market, and you are unclear about what/which market you are referring to? Did you get your law degree from watching reruns of "Law and Order" on NBC?)

MR. FREDERICK: That's correct.

THE COURT: We could affirm the finding of an attempt to monopolize a market by us reviewing the evidence and coming to an independent finding?  (Hello?  Did you understand how stupid your statement is?)

MR. FREDERICK: There is support in the law for that proposition. Wright and Miller contained a number of cases on the general proposition that if the record evidence supports a conclusion that the Court of Appeals can affirm, and I believe that ..

THE COURT: Suppose the evidence is controverted. Now, I assume that we could do that if the evidence were stipulated or uncontroverted. But can this court weigh evidence and reach findings? (You boneheads on the lower court didn't get ALL the facts correct, but you want us to rule in favor of your case?)

MR. FREDERICK: No, Your Honor, the Court would not need to do that. The question, though, is what ..

THE COURT: The evidence is not uncontradicted as to what constitutes a market in this case, is it? (Tell me again….What Market are you referring to?)

MR. FREDERICK: Well, that is not clear. Microsoft has not pointed to contrary evidence. Microsoft has made the argument that the District Court did not properly define the market. That's a different thing. The evidence that we submitted and that I've alluded to ..

THE COURT: For us to disagree with them, however, we would have to weigh the evidence in the record and make our own finding. Yesterday your side was quite adamant that market is a finding of fact. That's a fact question that we review under the clearly erroneous standard. Are you retreating from that proposition, Counsel? (The Microsoft guys said you didn't properly define it, you are admitting it is not clear, yet you want us to agree with you, the DOJ, and Judge Jackson? You guys are up for the Ass Clowns of the Decade Award)

MR. FREDERICK: No, Your Honor.

THE COURT: If it's a fact question, then it requires a finding based on a trier of fact weighing the evidence, does it not? (We can't weigh evidence unless I have the facts, you bonehead).

MR. FREDERICK: Yes.

THE COURT: And if there isn't a proper finding, which you really haven't pointed us to one that covers this particular aspect of the case, then we would have to at least send this back for some trial judge to weigh the facts and the evidence, wouldn't we? (If you don't have the right facts, and you didn't define the "market" that is being monopolized, can't we just throw the case back down to the district court idiots and have them CTRL/ALT/DEL and reboot this case from the beginning and start all over from scratch? Your job, in the lower court, was to get facts and base your arguments and accusations upon the facts. You don't have the proper facts, so how could your accuse Microsoft of being a monopoly and justify wasting EVERYONE's time and the Taxpayer's money? Why the fuck are we in court today?)

MR. FREDERICK: Judge Sentelle, I don't disagree with any of those propositions. My point is that there are indications in the fact findings that the District Court did believe it was defining a market. I've pointed the Court to those findings that support the District Court's conclusion and to the underlying evidence that supports it.
I would like to ..

THE COURT: Assuming you're right about that .. let's just assume for the purposes of argument that you're right.  (You aren't right, but let's walk down that path that you choose) Don't you have a serious problem with the third requirement, dangerous probability of success? I mean, in the browser market, let's assume there is a separate market. For Microsoft to have succeeded here, assuming they had reached a deal at the June meeting, Navigator would have had to fail the browser; right?  (Set the trap)

MR. FREDERICK: Yes.

THE COURT: Microsoft's Explorer would have had to take over the market. And you would have to have a barrier to entry.  (Bait the trap)

MR. FREDERICK: Yes. And the evidence ..

THE COURT: (This idiot took the trap, hook, line, and sinker.) So how do you .. I mean that's awfully speculative. I don't see anything in the record at all that would suggest that there's a dangerous probability of all of those three things happening under those circumstances. (So five years ago, you thought Navigator would fail, AND Internet Explorer would get 100% saturation, AND no Joe Schmoe in his garage could also write a browser that could be freely distributed, before any of these three things actually happened, and thus you wanted to prosecute Microsoft on the basis of "probability". What fucking crystal ball were you looking at?)

MR. FREDERICK: Let me point you to the relevant evidence, Judge Tatel.
At joint appendix pages 1488 to 90, we spelled out the evidence that we produced at trial on the barriers to entry that go to the high costs for producers of browsers, the network effects of browsers, and the fact that consumers are reluctant to switch once they get in to a browser.
And it's important here for the Court to understand what Netscape's business purpose was. Netscape at the time had approximately 80 percent of the market share, and it was attempting to develop its browser as a cross.platform vehicle.
Now, what Mr. Barksdale testified to at paragraph 25 and 85 of his direct testimony ..

THE COURT: But I only asked you about the browser market. (Don't change the subject, we are arguing about a BROWSER, and NOT about building some mythical cross platform application platform that somehow will run on all the operating systems that are out there, and allow for people to write cross platform applications. I am not a District Court Judge who has their head up their ass and sleeps during the trial sessions. You are here in the Court of Appeals, and we can see when people are fudging the facts)

MR. FREDERICK: Yes.

THE COURT: Let's just stick with the browser market. Don't go into the platform market.

MR. FREDERICK: Yes. And I'm sorry. I've lost your question, sir.

THE COURT: Well, my question is how do you conclude that any dangerous probability of success, even if they had reached a deal, that Microsoft would end up with a monopoly in the browser market?

MR. FREDERICK: Because Microsoft realized that unless they were able to strike an agreement to get what one of the documents says is sucking the functionality of the Navigator browser away from Netscape into Windows, it would not prevail. Netscape's market position ..

THE COURT: Would not prevail in what? In the platform market.

MR. FREDERICK: No, in obtaining dominance in the browser market.

THE COURT: Really? (You guys are dumber that we thought. No wonder we are on the Court of Appeals, and the rest of you guys are stuck arguing about shit in the lower district courts. You have the brain power of a newt on LSD.)

MR. FREDERICK: Yes. That is what .. that is what the document indicates.

THE COURT: Netscape .. under the arrangement that was being proposed, if I remember correctly, Netscape would continue to exist as a browser, and they would have been the preeminent browser had they accepted the deal.

MR. FREDERICK: Chief Judge Edwards, that's not correct. The deal was to give Netscape a shell user interface in which they basically would have no realistic opportunity to innovate at any ..

THE COURT: Now you are talking about the platform again. I mean that's the confusion on the District Court's findings. I mean that's what you are running from. You are going back and forth between the platform, or what the District Court calls the comprehensive platform for the development of network.centric applications, and the browser market. They are distinct matters. We really have studied this hard, and we understand the distinction. You can't have it both ways. (We know what a browser is. We know what a development platform is. We want you to define what the fuck you are talking about. Because we don't think you lower court boneheads and DOJ morons really understand this stuff….)

MR. FREDERICK: Chief Judge Edwards, what ..

THE COURT: Let me tell you what I thought I understood. (Because you guys are obviously over your heads in this, maybe I will help explain your own case)

MR. FREDERICK: Okay.

THE COURT: You may correct me. I'm happy to be corrected.
I thought Netscape would have remained in existence as a browser, would have been the preeminent browser in the world. As far as Microsoft was concerned, they didn't care. That wasn't Microsoft's concern. Microsoft was concerned, however, about the platform. No doubt about that. They've been very clear about that.

MR. FREDERICK: Your Honor, the point of why Netscape .. their business plan was to encapsulate both concepts. And that's why attempting to segregate them now ..

THE COURT: We went through that yesterday, and it's a hard hill you've got to climb when Barksdale says that's not our interest, and Netscape has done nothing to get there. But in any event, on the attempted monopolization, the theory of your case, I thought, was on the browser. (Let's see….so you lower district guys want to talk about cross platform development platform, but in the last 7 years, Netscape has done nothing to develop the APIs, the interfaces, the plumbing to become a development platform like Windows is today. All Netscape is today, and all Barksdale envisioned Netscape to be, is a cheesy browser so you can view HTML code.)

MR. FREDERICK: Chief Judge Edwards, with respect, you cited things in the record yesterday that were not correct. And I'd like, if I could, the opportunity now that you've raised Barksdale's testimony, to correct the record. Paragraphs 25 and 85 ..

THE COURT: Is this on the attempted monopolization claim?

MR. FREDERICK: Yes. It's what Netscape's business plan was. That's what's so important here, Your Honor, because Dean Schmalensee recognized ..

THE COURT: Tell me again what the attempted monopolization is. With respect to what? What market? (Don't fuckup…..are you saying Microsoft is trying to monopolize the browser market, or the cross platform development market? I asked you this question four times. Microsoft asked you this question in the lower court. All I want is you guys to define what you are concerned about. Is it that hard?)

MR. FREDERICK: The browsing cross.platform functionality. That's what Netscape perceived its product to be. That's where the value of the product was. As a shell user interface, it was not .. it was not going to be the kind of exciting, innovative product that was going to lead to real value. That's why the District Court found that if Netscape had accepted the agreement, it likely would not have had sufficiently economically powerful product to stay even in business.
And Barksdale recognized, in his cross.examination that you adverted to yesterday, Your Honor, simply said in '95 they were not prepared to be a complete platform substitute. But what he says in paragraph 85 of his direct testimony is that they were going in the direction of having certain key platform aspects that would be exciting, that could be developed, that people would want to write to, and that that posed a threat to the Windows monopoly. Dean Schmalensee's testimony, which is at 9466 of the joint appendix, recognizes that that would pose a threat.

THE COURT: And the dean goes on to say, if you can continue reading his testimony, that they never were a serious threat because they never did that which was necessary to accomplish it. Componentizing, for example. (Yes, the seven of us on the Court of Appeals understand that Netscape never built their browser as a series of components. Microsoft, on the other hand, designed their browser to be componentized, meaning that AOL and Intuit could invoke the Microsoft browser inside their applications, so magically a product like Quicken could have a portion of its accounting application use information stored on the customer's Wells Fargo Website, and bring that up web data in a window so they could balance their checkbook online against their Quicken entries on their PC, all within the same Quicken application window. Netscape, on the other hand, didn't design their product like this, they were amateurs, and designed a monolithic application, so you could not invoke Netscape from inside a Quicken application, Instead, the Netscape guys had the gall to tell Quicken, "Don't invoke the browser inside your Quicken application, instead you should let Netscape run as the main window, and then have your Quicken application be a small window running inside the Netscape browser. In other words, make Quicken be subservient to Netscape)

MR. FREDERICK: To the contrary. What he says on page 9466 is:
"Do you agree the Internet browsers offer the potential to become the alternative platforms on which applications and programs could run?
"Answer: Yes.
"Question: And do you believe that Netscape and the Java environment were potential platform or actual platform competitors to Microsoft?
"Answer: Yes. I believe that Netscape was a potential platform competitor, and Java was certainly by .. was and is by any definition an actual platform competitor."
Now ..

THE COURT: Absolutely. And I said to keep reading. You go to the end of the dean's testimony on this, and the dean says, when he was asked very pointedly by counsel, could they pull it off. I don't remember the lead question, but it was were they really a threat. And the dean said no. For example, they never attempted to componentize, which would have been essential.
That was his concluding point. That was what was interesting about what he was saying. There's no .. the early observations are absolutely correct. Microsoft doesn't doubt that Netscape and Java together would have posed a serious threat. But the dean goes on to say that the Netscape portion of it never was happening because Netscape never did anything to make it happen. And that's the part of the testimony you've conveniently ignored. (Components are good….you can reuse parts of the code for Internet Explorer's browser in other applications. Maybe you want to use part of the IE browser window in your accounting application, but you don't want the consumer to know that you are using Internet Explorer to view that bank account on the Internet from within Quicken. Instead, to Joe Consumer, it looks like Quicken is doing all the connection to the banking and credit card websites. It makes Quicken look like a hot shot developer, even though Quicken is actually using 90% of the Internet code already inherent in Windows via Internet Explorer, instead of Quicken having to develop their own code to accessing the Internet. Those Microsoft developers are pretty damn smart.  No wonder there are a 100,000+ applications on top of the Windows Platform!)

MR. FREDERICK: Sir, I have not conveniently ignored it. I would point to the contrary evidence from the Netscape people which we have collected in our proposed Findings of Fact.

THE COURT: Doesn't this all underline the lack of a finding of irrelevant market? I mean if we can look in the record and find evidence for all these different views as to what that market was, and now as to what the danger to that market was, aren't you just backing into the position that there isn't an adequate finding .. set of findings of fact to support a conclusion that there was an attempted monopolization of the browser, slash, platform, slash, whatever.else.you.want.to.call.it, market that we are discussing this morning? (Exactly what are you trying to say is being monopolized. We still don't have a clue as to what market you THINK is being monopolized.)

MR. FREDERICK: Judge Sentelle, if you would like me to repeat my earlier concession, I am happy to do so. But if I could direct the Court ..

THE COURT: No. I would like you to expand it. (Tell me what market is being monopolized. How many times do we have to say this?)

MR. FREDERICK: I'll keep it within the narrow confines of this issue, Your Honor. But if I could direct the Court to pages 772 and 76 in the joint appendix, I think that it does contain the evidence that I was adverting to in my earlier colloquy with Chief Judge Edwards.

THE COURT: Mr. Frederick .. (We are losing patience. We did our homework the past couple of months studying this. Supposedly you guys did your homework the past six years on this case. TELL ME WHAT THE FUCKING MARKET IS)

THE COURT: But it may be the same as the market definition evidence. It's evidence upon which at best a finding could have been made, but you really can't give me one that's strong enough to support what your claim is on this, can you?

MR. FREDERICK: I'm afraid I cannot, Judge Sentelle.

THE COURT: Mr. Frederick, did the government submit a proposed finding on the subject?

MR. FREDERICK: Yes. On the question of market?

THE COURT: Yes.

MR. FREDERICK: Yes, we did. And that is in the proposed Findings of Fact .. I don't have the exact paragraph number, but it's in the high 380s, like 386, 387; 389 is the one that goes into the barriers of entry.

THE COURT: The judge did not adopt it, of course. Did he say why?

MR. FREDERICK: No. What the judge did in the Conclusions of Law was to say that there was a browser market and to go into the attempted monopolization analysis -

THE COURT: Did your proposed findings on this subject cite to evidence in the record, as I know many of your proposed findings did?

MR. FREDERICK: Yes.

THE COURT: Thank you.

MR. FREDERICK: In fact, I would just say, if I could add, the findings .. the proposed Findings of Fact that we submitted are quite voluminous on everything that the District Court found.

THE COURT: Not only did the judge not make that finding. He received proposals from your side of the case and rejected that finding; right? (Do you think we Appeals Judges are stupid? What type of crap are you trying to pull off here?)

MR. FREDERICK: Judge Sentelle, I don't think it would be fair to say that he rejected it,
if ..

THE COURT: You filed it as a proposal, and he did not find it as a fact; right?  (That means he rejected it, just like I am rejecting your case)

MR. FREDERICK: Well, what the judge did, candidly, was -- and the three findings that I cited earlier explain the point -- in the conclusions of law made the conclusion that an attempted monopolization count had been made. So to say that the judge rejected our proposed findings of fact, I don't agree with that proposition.

THE COURT: All right. Fair enough. (You still haven't told me a damn thing. We are old, wise people on this court. We are getting tired of going nowhere with this argument. You obviously are clueless)

THE COURT: What about the post.meeting conduct? The claim there is that conduct in itself through the period of what, '95, '96, '7, '8, constituted an attempt?

MR. FREDERICK: That's correct.

THE COURT: You know, I'm curious about that. How can that possibly be, after the acquisition of Netscape by AOL? What percent of the browser market, however you define it, does AOL represent?

MR. FREDERICK: Well, that's a confusing question in several ways, and I hope that I can unpack it and be helpful to the Court as to that.
That transaction occurred during trial. So it was in late '98. The Findings of Fact that the Court issued in '99 showed that there was approximately 50 percent apiece, with Internet Explorer shooting up and Navigator shooting down. Now, AOL was tied in by ..

THE COURT: Paragraph 372.

MR. FREDERICK: Yes. What .. the AOL part of this was not meaningful for the attempted monopolization point because AOL was tied in by contract to use Internet Explorer as its browser until January of 2001. And ..

THE COURT: Didn't it have an option of going out at January 1, 1999? (So AOL could have dumped IE back in 1999? If Netscape is such a great app, why didn't AOL drop IE in 1999? Could it be…..componentization of the browser? Maybe Netscape sucked? Maybe IE Rocks?)

MR. FREDERICK: And that was repeated. And what the Court found based on evidence that it suspended the trial for purpose of .. and there was evidence that was gathered during the trial as to the effect of this transaction. And what the Court found based on that evidence was that AOL had a very strong economic incentive to continue because it wanted to stay on the Windows desktop. Purchasing Navigator in a sense gave it a lever with ..

THE COURT: Well, it wasn't exactly on the desktop. It was under the .. you had to click ..

MR. FREDERICK: On the online services folder.

THE COURT: Online services folder. (Yes, we did our homework. We know how to navigate on the Windows Desktop. We know everything that is in the online services folder, and we know everything that is in the various Windows folders. We even know what the various DLLs are for in Windows. We looked at the API calls on the MSDN CD. We can figure out how to invoke IE from inside another application. We aren't fucking amateurs like you guys on the lower court.)

MR. FREDERICK: Yes, that's correct. But that was sufficiently valuable to AOL, that it was not prepared to forego that opportunity ..

THE COURT: So this rested on the prediction by the District Court of what would happen when the contract expired? This is what I'm wondering. The District Court's finding of attempted monopolization depended upon a prediction about how AOL would act once the contract expired. And if the District Court was wrong about that, then doesn't that require us to reverse? (These DOJ guys are trying to stop monopolization based on predictions of how they THINK people are going to act, before the act actually happens? Based on this logic, do you go and arrest Larry Ellison because he thinks about torturing and killing Bill Gates? If you tried to have me convict Larry because he THINKS about killing Bill, I would have to throw the case out in court. Shouldn't I just reverse this entire damn case, because I cannot find any true wrong doing?)

MR. FREDERICK: No. And the reason is that what the Court found was that based on Microsoft's internal projections of the market share, that by the time any deal would be undone and AOL would be in an economic position to switch browsers, IE would be the dominant browser. That was the import of its finding that the AOL deal had no practical effect.

THE COURT: Is being the dominant browser a dangerous probability of becoming a monopoly with, say, 30 percent of the market still out there totally under the control of Netscape's parent? How can that be? (So if Netscape has 40% of the market….and AOL controls 30%, and AOL owns Netscape……if AOL switches to Netscape as the default browser, then Netscape has 70% market share….how in the fuck is Internet Explorer going to wipe out Netscape and AOL combined? Where is the monopoly danger, as in this case Microsoft would then only own 30% of the market?)

MR. FREDERICK: Well, the problem, Judge Randolph, is that because we've got intersecting lines in terms of usage share with Navigator plummeting, and IE going, you know, rocketing up ..

THE COURT: The Navigator line I know went like this. But after January 2001, it could start going like that again. (So you are trying to project market trends before they happen, and you assume the two trends go infinitely up and infinitely down with IE and Netscape respectively? Just because the NASDAQ goes up for three years from March 1997 to March 2000, does that mean it will go up forever? I think not, you asshole. Especially when YOU CAUSE MY public servant 401k plan to crash by 50% by you trying to prosecute this case. I could be at home getting drunk and watching naked women on cable TV, but no…..I lost half my retirement fund so now I am have listen to your lame ass explain to me why I lost $500,000 in my retirement fund because of your utter stupidity.)

MR. FREDERICK: It could start going to that to a degree ..

THE COURT: The District Court in 372 made a projection, a prediction. (Maybe Judge Jackson should put a sign on his courtroom door, "The Psychic Judge Will Tell You about Your Future Today. Only $3.95 per minute. Prosecute the new Hannibal Lector while he is still a baby in his mother's womb!")

MR. FREDERICK: Yes, as any dangerous probability finding must do. That's exactly what a District Court is required in an attempt to claim. And that was not clearly erroneous in light of the incentives that AOL had not to alienate Microsoft because of the position AOL wanted to maintain in the online services folder. That was what the District Judge did.
And if I could just, you know, step outside the record to a small degree, Judge Randolph, the judge's findings on this point have been borne out by subsequent events. Remedy Exhibit 23 indicates that those trend lines are exactly in line with Microsoft's internal projections as the Court had found, and that trend by all accounts ..

THE COURT: But that exhibit was never tested. I don't know if that's accurate or not. (You have bad data. You constantly refer to bad data. Bad Data equal bad case. Me thinks we should throw this case out of court)

MR. FREDERICK: I beg your pardon?

THE COURT: Was that admitted into evidence?

MR. FREDERICK: Remedy Exhibit 23?

THE COURT: Right.

MR. FREDERICK: It was proffered by the government at the remedy phase, and we can talk about that now or we can talk about that in a few minutes.

THE COURT: We can talk about that later. Your time is up, sir. (Thank God your time is up. We felt like we were talking to The Psychic Hotline Prosecutors. "I see a crime in the future. Not sure what type of crime. But I know it is a crime. I can't define the crime. But I know in my heart, it is crime. We must stop this crime. Let me make you a graph of the crime. The data isn't correct, but I am projecting the future trend of this crime. I can't tell you who will be hurt by this crime. But please, we must prosecute to stop this crime before the crime happens.")

MR. FREDERICK: Thank you.

THE COURT: Thank you. (Whew! Man, those DOJ guys are Fucking Morons. Now I know why all the court clerks call the judge "Pinhead Jackson". Okay, now time to listen to the rebuttal from the Microsoft guy. I hope he can argue better than these DOJ bozos)
You have five minutes.

MR. UROWSKY(lawyer representing Microsoft): Microsoft waives rebuttal.

PULP COMMENTARY:
Mr. Urowsky, was astounded at how much the Judges understood about the case. He choose not to re-argue his points to the judges, as he can see that the judges understand what is going on in this case.  The DOJ is hanging themselves by trying to justify that Microsoft should be prosecuted as a predatory monopolist.

The following is what I envision what Mr. Urowsky said to himself at this point in time:

"I'll be damned. Bill Gates was right. Everyone was telling Gates that he was stupid, and that he should settle the case and cut his losses before it goes to the Appeals Court or to the Supreme Court.  Gate told all those people to fuck off. 

The Appeals Judges intimately know what is going on, and they understand the technology, they understand the market and they understand the utter stupidity of this case. I don't even have to argue the points against the DOJ in front of these judges, I don't even have to explain to the Appeals Judges our rebuttal position. The DOJ shot themselves in the foot, their hand, their ass, and their head in this session. Now I understand why Bill bet the entire future of the company on going to the Appeals Court, instead of settling with the DOJ and accepting restrictions on Microsoft's conduct in the future. I thought Bill was an IDIOT for not settling this case…..but now I understand why he wanted to roll the dice with the Appeals Court. Okay….so it is becoming clearer to me…..let's see….Judge Jackson, David Boies, and Joe Klein wanted to look good to the public, as looking good is important for their careers as "public servants" that in the future may need voter approval. So what they do is that they attack Microsoft, distort the facts, and rule that they are going to breakup Microsoft. They figure Bill will be so scared of the breakup, that he will concede he lost the case, and will negotiate a deal and settle the case, so it will look to the public like Jackson, Boies, and Klein are heroes, because Bill admitted that Microsoft is guilty. But their little plan backfires…..Gates says fuck you, you bastards, No Deal, we are going to the Court of Appeals so they can bitch slap you around like they did the other three times.  And that is what is happening before my very eyes as the trial unfolds......"