By Mary Mosquera,
Microsoft said Tuesday previous court cases support its defense that its business behavior was aggressive but did not break federal antitrust laws.
Microsoft's reply to the government's preliminary conclusions of law was the software giant's first legal response since a federal judge's scathing findings in November. Microsoft took issue with many of the findings of U.S. District Judge Thomas Penfield Jackson, specifically those claiming the software titan abused its monopoly, obstructed competition, and harmed consumers.
"Even accepting the court's findings of fact, plaintiffs still have not satisfied their burden under the governing law on any of their claims,'' Microsoft said.
The Justice Department and 19 states filed formal charges last month enumerating Microsoft's several violations of the Sherman Act, the nation's chief antitrust law.
The government said Microsoft abused its monopoly by making it difficult for potential competitors to enter the Intel-based PC operating system market, tying its Internet browser to Windows, imposing exclusionary contracts on PC makers and Internet providers, and obstructing Netscape's access to consumers to distribute and market its browser.
"Our brief makes a strong case that even though the findings of fact paint an unflattering picture of the company, the findings do not add up to any antitrust violation. We cite dozens and dozens of legal precedents, and numerous findings from the court, to show that while Microsoft has competed aggressively, we have competed within the law," said Microsoft spokesman Mark Murray.
"The government simply hasn't satisfied its burden of proof under the law," he said.
Because the case was bisected into a findings of fact two months ago, followed by legal analysis coming forth now, it may have created a sort of rush to judgement among some observers, Murray said.
Indeed, speculation grew last week that Justice and the states had agreed to a break-up of the company as a condition to settling the landmark antitrust case.
Microsoft also said the government failed to prove it tied its Internet Explorer browser to Windows in violation of federal law, citing cases including Telex vs. IBM in 1973. A federal appeals court in June 1998 already ruled in favor of Microsoft's right to add the browser functionality, which would benefit many consumers.
Microsoft said the Intel-based PC market is too small a relevant market to decide if Microsoft has a monopoly. "Having an extremely popular product does not make a company a monopolist," the filing said.
The software giant said it does not have a monopoly because the operating system market is evolving to include other platforms such as Linux, Unix, and other Web-based platforms and information devices.
Meanwhile, the parties continue their efforts to settle the antitrust case, which has been running since U.S. District Judge Thomas Penfield Jackson named Judge Richard Posner, chief of the U.S. Court of Appeals for the Seventh Circuit in Chicago, to bring the parties to the table to seek a settlement. Microsoft and the government have been united in their resolve not to comment on the talks.
"Although Judge Jackson found alleged 'stifling' of competition, his findings lacked solid definitive evidence that competition was impaired, for example, in the barriers to distribute browser. Microsoft focus [ed] with laser beam intensity on the lack of evidence of competitive obstacles," said Hillard Sterling, antitrust attorney with Gordon & Glickson in Chicago.
A number of judicial decision will support Microsoft. "Hate as much as you might, there is a legal framework that gives them protection. There is lots of precedent in case law," said William Kovacic, law professor at George Washington University.
Case law would suggest in technologically dynamic markets, or markets that feature substantial possibilities for new entry, the court has to be careful about depending on market share data. "As a matter of law, even if Microsoft didn't have lots of competitors, their position was contestable, with enough potential to spur Microsoft to act like a competitive firm," Kovacic said.
The parties are to argue their conclusions of law before Jackson on Feb. 22. He will issue his final ruling after that.
Try TechWeb's RSS Feed!
TechWeb's FREE e-mail newsletters deliver the news you need to come out on top.
Get definitions for more than 20,000 IT terms.
Editorial and vendor perspectives
