Microsoft's Losing European BattleMicrosoft's Losing European Battle

Microsoft is escalating its 2-year-old war with Europe's trustbusters, charging in a 16-page complaint that the European Commission schemed with the software giant's rivals in trying to discredit Microsoft's compliance with the EC's 2004 antitrust decision.Microsoft's defiance should come as no surprise. Ever since CEO Steve Ballmer returned from Brussels empty-handed two years ago--"We had hoped to settle this thing," he snapped--Microsoft has claimed the moral and legal high ground.

Here's a cheap piece of legal advice: The high ground is a lonely and potentially expensive piece of real estate, so change your tactics.

Recall that Microsoft took the same in-your-face tack with the U.S. Justice Department and the judge who oversaw the U.S. antitrust trial. The initial U.S. ruling, if it had been implemented, would have been disastrous for Microsoft. Only after Gates, Ballmer & Co. stopped grandstanding and started feigning some respect for the process was it able to mitigate the decision to one that has allowed the company to operate undaunted.

Whether Microsoft has a legitimate beef with how the European case is being handled really doesn't matter (unfortunately). In the United States, class-action lawyers regularly shop their frivolous suits to the judges and counties they know will be the most sympathetic. For high-tech litigators (Sun, Novell, etc.) that can't punish Microsoft in the marketplace or U.S. court system, the judicial woodshed of choice is now Brussels, which is all too happy to paddle the European tech industry's single biggest competitor.

The EC has all the power. It's time for Microsoft to realize that.