Microsoft, U.S. file final briefs in antitrust trial
BY DAVID L. WILSON Mercury News Staff Writer
sjmercury.com
The pages dripping venom, Microsoft Corp. and the U.S. Justice
Department filed hefty briefs in the Microsoft antitrust case Friday as
each sought to convince Judge Thomas Penfield Jackson that the other
side was ignorant, wrong or just plain lying.
The latest filings were revisions of the ``proposed findings of facts' made
by each side a month ago, and they didn't offer much new evidence. In
the long-running case, the federal government charges that software giant
Microsoft abused its monopoly power in computer operating systems to
squelch competition.
However, the filings, which totaled around 2,000 pages, were striking
because of their tone. At this stage of a case -- after all the testimony has
been heard -- each side usually files an emotionless laundry list of what it
believes are the ``true' facts that were presented, framed by the basic
legal arguments each side has made. The judge then uses those lists of
facts to craft his view of the facts.
``It's supposed to be an almost Joe Friday, just-stick-to-the-facts
presentation,' said Rich Gray, an intellectual property lawyer with a firm
called Outside General Counsel of Silicon Valley.
But in this case, Microsoft and the government mixed in some vicious
snipes with the mounds of information.
In its brief, Redmond, Wash.-based Microsoft accuses the Justice
Department of making ``demonstrably false factual assertions' in its court
filings.
The government, in turn, was only slightly more diplomatic, saying,
``Microsoft's initial Proposed Findings ignore most of the evidence against
it, mischaracterize much of the evidence that is not ignored, and argue for
a series of propositions that are, as a factual matter, at odds with the trial
record and, as an economic and legal matter, irrelevant even if true.'
The unusually acid nature of the latest filings suggests a level of hostility
that does not bode well for some kind of negotiated settlement before
Jackson issues his ruling on the facts of the case, probably some time in
October.
Indeed, people close to both sides say a settlement is unlikely because
there is no common ground, and each side would have to abandon
important trial objectives to get the other to make a deal.
Jackson will use the material contained in the filings, together with oral
arguments scheduled for Sept. 21, to craft his findings of fact and then
his conclusions of law, which together will make up his ruling in the case.
Under the rules, there can be no new material in the proposed findings of
fact presented by each side.
In Friday's filings, neither side strayed far from the points they've been
hammering on since the trial began Oct. 19.
The government alleges that Microsoft has monopoly power in the market
for desktop computer operating systems with its market-leading Windows
software. The government further claims that the company illegally used
that power to attack other companies that could have posed a threat. One
way Microsoft did that, the government contends, was by illegally
``tying' its Internet Web browser software, Internet Explorer, to
Windows in such a way that it cannot be removed.
The government also contends Microsoft illegally restrained trade by
giving away its browser free with every copy of Windows, making it
harder for rival Netscape Communications Corp. to sell and distribute the
Netscape browser. Netscape was recently purchased by America Online
Inc.
Finally, the government says Microsoft illegally used its monopoly power
to force exclusive contracts on computer makers and Internet service
providers to limit choice and harm consumers.
Microsoft insists that one cannot reasonably separate a market for
desktop operating systems from the overall market for software. Even if
such a market does exist and Microsoft products like Windows 98 enjoy
market dominance, that's due to consumer choice, the company argues.
Microsoft could be toppled from any controlling position by any company
that produces a superior product. Microsoft also says that since its
operating system and browser are a single product, there is no illegal
tying, and consumers have benefited from this integration in part because
browsers are now free.
While this part of the trial is winding down, if Jackson finds that
Microsoft has violated antitrust laws, he'll need to have what is essentially
another, separate trial, probably beginning next year, to determine what
sort of penalty would be appropriate. |
