Microsoft sees flaw in antitrust case

The U.S. Department of Justice (DOJ) and 19 states have acknowledged that Microsoft Corp.’s decision to include Internet technologies in its Windows operating system benefited consumers and competition, according to a brief filed by Microsoft in its federal antitrust case on Monday.

Microsoft also argued that the government is continuing to move away from its claim that the company tried to illegally bundle Windows 95 and 98 with Internet Explorer.

The position is not sustainable and Microsoft believes it is “fatal” to the government’s case, said Jim Cullinan, a company spokesman.

In the 75-page brief, the high-tech titan also points out evidence of continued competition in the browser market in 1998 and argues that the government has not shown that Microsoft had “monopoly power” or engaged in anticompetitive conduct. It further hones in on public comments made by Judge Thomas Penfield Jackson, which the company believes show animosity toward Microsoft.

A DOJ spokeswoman declined comment on the latest brief.

Microsoft suggests that the government has conceded that it did not violate antitrust laws by “offering IE (Internet Explorer) to OEMs (original equipment manufacturers) in a bundle with Windows at no extra charge,” according to the brief. It goes on to say that the government admits the district court found the company’s conduct “in developing a Web browser and offering it to OEMs and users with Windows to be lawful.”

Ken Auletta, a writer for The New Yorker magazine who has written a book about the antitrust case, gets into the legal record of the case in the brief. His comments are used by Microsoft to point out Jackson’s dislike for the company.

“The district judge’s repeated public comments also demonstrate an animus towards Microsoft so strong that it inevitably infected his rulings,” the brief states. “For example, Auletta reports that the district judge compared Microsoft executives to unremorseful gang members convicted of brutal, execution-style murders and criticized Microsoft’s CEO (chief executive officer) for having a ‘Napoleonic concept of himself and his company.’ Indeed, in the public eye, the district judge has joined the fray as an adversary of Microsoft.”

Most recently, on Jan. 12, the DOJ defended Jackson’s ruling as well as the judge’s conduct in and out of the courtroom in its own appellate brief. Jackson ruled on June 7 that Microsoft had used its dominance in the OS to quash competition. Accepting a DOJ proposal, he ruled to split Microsoft into two companies. One company would control the Windows operating system, while the other would focus on applications, such as Microsoft Office and the Internet Explorer browser.

The government in its Jan 12 brief also said the judge’s ruling was crucial as it will “permit competition” rather than having Microsoft, the government or the courts influence the marketplace.

The appellate brief process began in November when Microsoft submitted its initial filing, which suggested that Jackson’s ruling was flawed and that his comments about the company since his ruling to split the company showed antagonism toward the software company.

DOJ officials are expected to file their final brief to the appellate court on Feb. 9. Oral arguments before the U.S. Court of Appeals are set for Feb. 26 and 27.

Microsoft in Redmond, Wash., can be reached at The DOJ, in Washington, D.C. can be reached at

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