Antitrust Trial Briefs Pile In

WASHINGTON (02/04/2000) - In a series of court papers filed last week by friends and foes of Microsoft Corp., antitrust trial Judge Thomas Penfield Jackson got volumes of advice for dealing with the software giant.

The most important brief may have been the one submitted by Harvard Law School professor Lawrence Lessig, who focused on an area that has given Jackson trouble: the 1998 appeals court ruling that said Microsoft could legally integrate its browser with its operating system.

Jackson had appointed Lessig as a special master, or adviser, in the case.

Microsoft accused Lessig of being biased, but the appeals court dismissed him as unnecessary to the case.

Others who filed briefs last week included the Association of Competitive Technology, which filed in support of Microsoft, and the Software and Information Industries Association, which filed in support of the government.

Former federal Judge Robert Bork submitted a brief on behalf of the states.

Most of the arguments raised in these briefs are already spelled out in the case, said William Kovacic, a law professor at George Washington University in Washington. "On the whole, their impact will be relatively modest," he said.

A key issue in the case is whether integrating the Internet browser with Windows was "tying," the linking of two or more products. Microsoft argues that the browser and the operating system aren't separate products, but Jackson said he could see "no consumer benefit" to "Microsoft's refusal to offer a version of Windows 95 or Windows 98 without Internet Explorer."

Lessig acknowledged that the case law in this area is unsettled, but he said the appeals court's decision wasn't broad enough to necessarily affect the outcome of this case.

Jackson will likely take Lessig's analysis "very seriously," Kovacic said.

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