DOJ takes Microsoft appeals brief to task

Microsoft has had enough time to prepare its antitrust appeal so the process should be expedited, not slowed down as the company has requested, the US Department of Justice (DOJ) says.

          Microsoft has had enough time to prepare for its appeal in the US government's antitrust case against the software maker and so the process should be expedited, not slowed down as the company has requested, the US Department of Justice (DOJ) urged Tuesday in a court document.

          The DOJ's reply to Microsoft's recommendations regarding the appeals schedule takes the company to task for seeking to delay the process, arguing that "it is essential for effective antitrust law enforcement in a critical sector of the nation's economy that the appeal be concluded expeditiously." Microsoft's request that it have 60 days from the time the schedule is set to file its principal brief is not warranted, the DOJ contends.

          Microsoft filed its scheduling brief on Monday, requesting both ample time to file its appeals briefs and more than the usual number of pages to state its case. The DOJ had until Thursday to file its response, but took the unusual move of filing two days early as a way to move the matter along, according to the DOJ court brief.

          "Almost four months have passed since the district court entered its final order on June 7," the court filing says, and nearly 11 months have transpired since U.S. District Judge Thomas Penfield Jackson issued his findings of fact in the case, ruling that the company holds a monopoly in the operating systems market. Further, the judge ruled in April of this year in his conclusions of law that Microsoft has used its monopoly power to illegally make inroads into other markets, notably Internet browsers, and to curb competitors.

          The DOJ, which along with 19 states is the plaintiff in the landmark antitrust case, proposes that the briefs in the appeal be scheduled for filing this calendar year, taking into account the upcoming U.S. holiday season, starting with Thanksgiving in November and ending with New Year's Day, when employees often take time off. Microsoft should file its opening brief by Nov. 1, with a limit of 24,000 words under the government plan.

          The government's response would be due by Dec. 8 and would also be limited to 24,000 words regarding federal issues with one brief also filed by the states addressing their concerns and limited to 7,000 words. Microsoft would then have until Dec. 22 to respond, with that brief limited to 7,000 words.

          The DOJ noted in the filing Tuesday that Microsoft's proposal regarding the length of its appeals briefs call for "four times the length" allowed by federal law, or "well over 200 pages in non-proportionally spaced type -- and 28,000 words ... There is no justification for this extraordinary request. This is an appeal, not a retrial." However, the government did allow that "the size of the record here may justify some latitude on the principal brief, but far short of quadrupling the page limits."

          Microsoft has argued that the antitrust case is complex, but the DOJ disputes that claim, contending that the "legal issues do not differ significantly in complexity or scope from those presented in any civil antitrust case."

          Microsoft has until Tuesday, Oct. 10 to respond, after which the court will set the appeals brief schedule.

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

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