Industry groups file pro-Microsoft Amicus brief

Two nonprofit trade associations favoring the legal position of Microsoft Corp. in its antitrust case appeal filed a joint amicus curiae – or “friend of the court” – brief with the U.S. Court of Appeals in the District of Columbia on Monday. Their argument: Microsoft’s business practices benefit the IT industry.

The brief filed by the Association for Competitive Technology (ACT) and the Computing Technology Industry Association (CompTIA) said “the lower court overlooked compelling evidence that Microsoft’s challenged business practices, many nearly universal in the IT industry, were procompetitive, not anticompetitive. The District Court compounded its error by granting structural relief that will fragment the Windows operating system, retarding its further evolution and reducing the usefulness of a ‘standard’ that has been a key driver in making this industry so dynamic and competitive.”

U.S. District Judge Thomas Penfield Jackson ruled on June 7 that Microsoft illegally stifled competition using its dominance in operating systems. He ruled Microsoft must be broken up into two separate companies, at the proposal of U.S. Department of Justice prosecutors.

The 25-page ACT-CompTIA brief describes the emergence of the Windows operating system as a “de facto operating system standard” for personal computers as “both natural and efficient,” and Microsoft’s monopoly position as “inherently transitory.” It argues that antitrust law was misapplied, that a breakup will make computers harder to use and drive up consumer prices, and that the ruling sets a precedent that will chill innovation and competition.

“The District Court was flat-out wrong,” said Vince Sampson, vice president for public affairs for ACT. “They misunderstood the effect of a breakup on the industry as a whole,” he said. “Look at all the products that come out based on Windows. If Microsoft fragments … developers won’t have a platform to develop to.”

The remedy will require ongoing supervision that the courts aren’t equipped to handle, he said. The pace of the IT industry “isn’t subject to bureaucratic processes … it’s going to delay and frustrate consumers, producers and developers.”

The arguments do not seem strong to an antitrust attorney comparing them to the findings of the lower court.

“What the antitrust laws are supposed to do is to correct for problems in the past,” said Robert Schneider, an antitrust lawyer with the law firm of Chapman & Cutler in Chicago. “I’m not saying they’re meritless arguments, since this appellate court has taken a more liberal view of how antitrust law should be applied … but I think (Microsoft) will still be a major player in 10 years, particularly if they hold on to their operating system. I don’t see a major competitor on the horizon.”

The court granted ACT and CompTIA permission to act as friends of the court in a Nov. 3 order. The order also instructed two groups promoting the libertarian philosophies of novelist Ayn Rand – the Association for Objective Law and the Center for the Moral Defense of Capitalism – to file a joint brief Monday as well.

The two amicus briefs were aligned with an October order instructing Microsoft to file a brief presenting its case Monday [see story – MS appeals brief blasts lower court].

Microsoft, in Redmond, Wash., can be reached at The DOJ, in Washington, D.C., can be reached via the Internet at ACT, in Washington, D.C., can be contacted at CompTIA, in Lombard, Ill., can be reached at

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