DoJ attorneys: Microsoft is still guilty
Published: 26 Jan 2000 11:05 GMT
Microsoft was accused Tuesday of taking "potshots" at US District Court Judge Thomas Penfield Jackson's finding that it was an abusive monopoly.
In their last scheduled filing in the long-running Microsoft antitrust suit, the US Department of Justice and 19 state attorneys general also charged that the Redmond-based software company hid behind copyright law, ignored Jackson's core assertions, and dismissed established legal standards prohibiting it from incorporating the browser into Windows.
The filing was the DoJ's chance to respond to Microsoft's proposed conclusions of law, in which the company repeatedly said that it didn't break the law or have a monopoly. However, the DoJ said that, try as it might to defend its actions, Microsoft still acted illegally. "Microsoft fought a multi-front campaign, using a broad array of anticompetitive tactics that reduced rather than enhanced consumer choice, to sustain the critical barrier to entry protecting its monopoly power," DoJ attorneys wrote.
But the end is now in site for the long string of legal documents in the case, which was filed in May 1998. Jackson issued his scathing findings of fact in November, which declared Microsoft an abusive monopolist. Each side then was allowed to submit its interpretation of the laws, followed by a reply to the other side.
Microsoft is expected to deliver its last scheduled filing next week. Jackson will then consider four filings when he finally decides whether the company violated antitrust laws by, among other things, tying Internet Explorer to Windows and striking exclusive deals with its partners.
The DoJ attacked Microsoft's assertion that the market for Intel-based PC operating systems was too narrow because threats such as Apple Computer's operating system and Java exist outside it. The DoJ pointed out that Jackson declared the Intel market was the proper one to consider for the purposes of this case. "Unable to dispute these findings as a factual matter, Microsoft must resort to hinting at the legal proposition that any firm selling anything that might take some of the defendant's customers away, or that offers a tool for lowering barriers to competing with the defendant, must be in the same market," DoJ attorney wrote.
The DoJ said Microsoft's attacks on the finding that it has monopoly power in the relevant market amount to little more than "potshots."
As it did in its proposed conclusions of law, the DoJ cited heavily from Jackson's hard-hitting findings of fact, saying that the judge found Microsoft had the ability to charge prices that were substantially higher than the market allowed. Government prosecutors also repeated claims that Microsoft tied the browser to Windows and struck exclusionary deals in order to quash competition and maintain a monopoly.
Microsoft spokesman Jim Cullinan attacked the governments' arguments, accusing them of ignoring a 1998 appeals court ruling in favour of Microsoft, which allowed the company to tie the browser to the operating system. "The government is trying to write new law," he said. "That's better left to Congress."
The DoJ also poked holes in Microsoft's attempt to hide behind copyright law. In its filing last week, the company claimed it had the right to restrict computer makers from altering the desktop screen because it has a copyright on Windows 95 and 98. "No copyright interest is impaired by enforcing the Sherman Act's prohibition to condemn agreements like the OEM restrictions at issue here -- restrictions that, far from being reasonably necessary to protect any legitimate copyright rights, simply bar OEMs form assisting consumers in making choices they are fully entitled to make even under Microsoft's view of copyright law," DoJ attorneys wrote.
Both sides are in mediation talks guided by Federal Appeals Court Judge Richard Posner, who was appointed by Jackson to oversee the talks. Microsoft will submit a reply to the latest DoJ filing in a week. Oral arguments are scheduled in a Washington, D.C., federal courtroom on February 22.
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