U.S. Opposes Redmond Rehearing

Jul 26 2001

Lawyers for the U.S. Department of Justice and 18 state attorneys general told an appeals court Thursday that there was no need to reconsider a key finding in the antitrust case against Microsoft and urged the case be returned to a lower court to fashion a remedy limiting the software giant's future behavior.

"Microsoft's argumentative reweighing of the evidence already considered by the court does not establish that the court erred," the government said in a filing with the U.S. Appeals Court for the District of Columbia.

The brief came in response to Microsoft's July 18 filing asking the appeals court to reject its earlier finding that the company had commingled software code for its Web browser with code for the Windows 95 and 98 operating systems. In a unanimous decision June 28, the court held that the combination - and numerous other Microsoft business practices - violated antitrust laws by harming competition without benefiting computer users.

Legal experts have said that the appeals court is unlikely to reverse itself on the issue, forcing Microsoft into a possible Supreme Court appeal.

The issue is a critical one for the company, which plans to integrate a variety of products into its upcoming Windows XP operating system, including a media player and online authentication and photo-printing services.

When the appeals court issued its decision upholding much of the case against Microsoft but throwing out Judge Thomas Penfield Jackson's previous order splitting the company in two, Microsoft officials said they were free to bundle anything they wanted into XP.

But legal experts disagreed and the company's lawyers appear to have had second thoughts as well, necessitating the request for a rehearing. According to the standard used by the appeals court in its June 28 decision, Microsoft cannot commingle code or bundle separate products into Windows unless the benefits to consumers outweigh the harms to competing products.

In Thursday's response, the government did not appear overly concerned with Microsoft's rehearing request, filing a short six-page brief more than a week before the deadline for responding set by the appeals court.

In its brief, the government argued that the appeals court had already reviewed the trial testimony on the issue and determined that Jackson's finding on commingled code should stand.

The brief highlighted several instances where Microsoft lawyers incorrectly summarized excerpted testimony in its request for a rehearing.

For example, the company said that government witness and computer science professor Edward Felten admitted to making "no attempt" to identify commingled code. But, Felten actually said he had not attempted to "identify all such code," the government noted.