DOJ Counters Microsoft Request for Speedy Ruling

Microsoft Corp. faces 'no burden at all' from a preliminary injunction ordering the software giant to unbundle its Internet Explorer Web browser from the Windows 95 operating system and therefore has no basis to request an expedited appeal, the U.S. Department of Justice said today in a federal court document.

Microsoft Corp. faces "no burden at all" from a preliminary injunction ordering the software giant to unbundle its Internet Explorer Web browser from the Windows 95 operating system and therefore has no basis to request an expedited appeal, the U.S. Department of Justice said today in a federal court document.

Microsoft appealed a U.S. District Court injunction last week and asked for a speedy ruling from Judge Thomas Penfield Jackson, arguing that the court order would cause "irreparable harm" to the company. Microsoft also contends that the company was not properly notified of the injunction, that Jackson didn't hold a hearing on the matter and that his ruling "intrudes on basic product design" contrary to antitrust regulations.

DOJ filed a federal suit against Microsoft arguing that the company is violating a 1995 consent decree regarding alleged anti-competitive practices by forcing PC manufacturers to accept IE as part of an integrated operating system. DOJ contends that the browser is not part of the Windows platform and that forcing manufacturers to accept IE squeezes out competing software.

"Despite its claim that the preliminary injunction was procedurally infirm and will cause it irreparable harm, Microsoft neither requested further relief from the district court nor sought a stay of its order," today's DOJ filing says. "Microsoft's failure to seek a stay pending appeal poignantly demonstrates that the district court's preliminary injunction imposes on Microsoft no significant hardship, let alone threatens serious irreparable harm that might warrant accelerating the appellate process."

Jackson last week set a Jan. 13 hearing to consider a DOJ request that Microsoft be held in contempt for allegedly violating the preliminary injunction. Jackson gave Microsoft until tomorrow to formally respond to the DOJ contempt charge and gave DOJ until Dec. 29 to respond to Microsoft's response.

Microsoft has argued that disabling IE makes Windows 95 inoperable. But the judge said in the hearing that he had easily uninstalled IE and the operating system continued to function. The Jan. 13 hearing, Jackson said last week, will be to "determine whether I can believe my own eyes," according to an observer at the hearing.

Microsoft said in a letter last week to DOJ that it is making available to PC manufacturers the option of receiving software packages that do not include IE 3.0 or the updated 4.0.

The company argues that an expedited ruling on the injunction also is necessary for PC manufacturers and because Windows 98 is supposed to be on the market in the first half of next year. Today's DOJ filing points to a statement on Microsoft's Web site in which the company says that the preliminary injunction will not affect plans to release Windows 98.

Microsoft did not immediately return a telephone call seeking comment on the latest filing. The DOJ says in the document that it has not decided whether or not it will file a cross appeal to Microsoft's appeal of the injunction.

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