DOJ responds to public comments in Microsoft case

The U.S. Department of Justice has provided the Microsoft Corp. antitrust case judge an all-encompassing response to the more than 32,000 public comments it received about the case -- the largest public response ever filed in an antitrust case.

The 248-page brief (download .pdf), filed late last night, includes government responses to deal with a galaxy of opinions about the case -- from charges that "the government should have never brought the case" (the government pointed to its court victory to rebut that point), to allegations of political influence by Microsoft.

Those allegations, the government wrote, "lack any factual support."

Some writers said Microsoft should be made to financially pay for past misdeeds. "This is a government civil action for injunctive relief, and monetary damages are not available in such actions," the government wrote.

The brief also focuses on the meaning of certain words in the settlement, such as "interoperability." And in some instances, the comments formed the basis of modifications to the proposed settlement, also filed with U.S. District Court Judge Colleen Kollar-Kotelly late yesterday.

The settlement changes were intended to tighten the settlement language. For instance, the Justice Department cited comments charging that the proposed settlement's definition of application programming interfaces (API) includes only Microsoft APIs, "thus rendering the other definitions that use the term API in the context of non-Microsoft software potentially meaningless."

The government's revised settlement broadened the definition to include other APIs.

More significantly, the government deleted a section of the settlement that critics, including the nine states that have refused to settle the case, charged would allow Microsoft to gain access to PC maker patents through the uniform licensing terms imposed by the settlement.

Microsoft said in a statement that the changes "more accurately reflect the intent of the parties and address some of the misperceptions of the proposed decree."

The government received 32,329 public comments, the most it ever received under the Tunney Act, a federal sunshine law for antitrust settlements. More than 90 percent of the comments were sent via e-mail.

The government intends to release all the comments; 47 of the comments, mostly from large corporations and trade groups, have been posted online. The remaining comments are due to become available shortly.

A hearing on the proposed settlement is scheduled March 6.

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