DOJ Rebukes Microsoft

SAN MATEO (01/28/2000) - Microsoft Corp. ignored the substantive findings of a federal court judge -- "addresses straw men," "takes a series of potshots," and misstates legal standards -- in an attempt to evade the issues of its antitrust case, the U.S. government argued last week.

The U.S. Department of Justice's comments came in response to the software maker's proposed conclusions of law in the ongoing antitrust case, which the company filed earlier this month.

Microsoft officials stated how they think U.S. antitrust laws should be applied to U.S. District Court Judge Thomas Penfield Jackson's findings of fact issued last November, in which he ruled that the software vendor is a monopoly.

Microsoft defended its behavior, which the U.S. Department of Justice and 19 U.S. state attorneys general contend is illegally anti-competitive. The company argued that it does not have a monopoly with its Windows operating system, and has not improperly used its position to squelch competition among Internet browsers.

But the Justice Department in its rebuttal said Microsoft "improperly evades the substantive importance of the finding of monopoly power," and also countered that Microsoft cites case law and legal standards involving businesses, other than those making software and circumstances, that bear no relationship to the case.

"Microsoft fails to identify any basis for denying the plain legal consequence of this court's findings -- that Microsoft unlawfully maintained a monopoly," the government asserted.

Microsoft has until Feb. 1 to file its own response to the government's rebuttal. Oral arguments concerning how antitrust law should be applied to Jackson's factual findings are set for Feb. 22.

Jackson has appointed a mediator to meet with both sides. Published reports have said that the U.S. government wants to break up Microsoft into two or three separate companies.

Elsewhere on the legal front, an injunction was reinstated against Microsoft, preventing the company from distributing Java-based products that do not pass Sun Microsystems' Java compatibility tests. The reinstatement was made by U.S.

Judge Ronald Whyte. Microsoft officials said the ruling merely extends court orders to which the company already adheres.

Microsoft Corp., in Redmond, Wash., is at The U.S.

Department of Justice is at

Nancy Weil is a Boston correspondent for the IDG News Service, an InfoWorld affiliate.

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