Microsoft Due to File Rebuttal in MS/DOJ Case

Microsoft Corp. today is due to file its rebuttal of the U.S. government's most recent court filing in the ongoing antitrust trial, the last step in the case before the two sides present their final oral arguments in front of U.S. District Court Judge Thomas Penfield Jackson.

Today's filing from Microsoft is expected to rebut the government's response to a recent brief from the software maker, which is accused by the U.S. Department of Justice (DOJ) and 19 state attorneys general of illegally using its dominance in PC operating systems to try to quash competition in other areas, such as the market for Web browsers. In effect, today's document will be a rebuttal of the government's rebuttal of the company's legal defense.

After Jackson ruled last November in his findings of fact that Microsoft is a monopoly, each side was allowed to respond with conclusions of law, which set forth how the software maker and the government believe that antitrust law should be applied to the findings of fact. Each side also is allowed to file rebuttal briefs arguing about points made in the other's conclusions of law.

Microsoft has defended its actions, contending that it is not a monopoly and that it has not misused its market position. The company further contends that it has not engaged in illegal anticompetitive behavior by, for example, forcing other vendors to sign exclusionary deals that cut rival companies, particularly Netscape Communications Corp. (now part of America Online Inc.), out of the Internet software market.

The government has argued that Microsoft has indeed violated antitrust laws and that the company in its conclusions of law filing a week ago ignored the substantive issues of the case and instead addressed "strawmen" and took "a series of potshots," while also misstating legal standards to evade the relevant points in the dispute.

In advance of today's expected brief from Microsoft, the nonprofit Association for Competitive Technology (ACT) yesterday filed a friend of the court, or amicus curiae, brief supporting the software maker. Microsoft is a member of that group, which says it represents 9,000 IT vendors.

Microsoft designated ACT as a friend of the court when Jackson asked the sides in the case to choose "friends" to file briefs in the case. Such documents are intended to point out issues that might otherwise not be considered by the court, and are submitted by individuals or groups that are not a party to the lawsuit in question.

ACT agreed in its 45-page brief with Jackson that Microsoft is a monopoly, but said that the company's behavior did not violate antitrust laws. [See "IT Group Files Pro-Microsoft Friend of Court Brief," Jan. 31. ] Under U.S. antitrust law, it is not illegal for a company to be a monopoly. It is, however, illegal to use monopoly power to gain advantage in other markets or in ways that are anticompetitive.

Other amicus curiae briefs are also due today, including documents that support the government's position and a brief supporting Jackson, who designated Harvard law Professor Lawrence Lessig as his friend of the court. Microsoft argued against that choice, contending that Lessig has "strong views" about the software maker. Lessig, a recognized authority on the topic of cyberspace law, was first appointed by Jackson as a "special master" in a related case involving Windows 98, but was removed from that duty when an appeals court ruled that the position wasn't necessary in the matter.

Today's flurry of court filings are the last scheduled before oral arguments from both sides regarding how existing antitrust laws should be applied to Jackson's findings of fact. Jackson will hear oral arguments Feb. 22.

Microsoft, in Redmond, Washington, can be reached at +1-425-882-8080 or at http://www.microsoft.com/. The DOJ, in Washington, D.C., can be reached at http://www.usdoj.gov/.

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