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The government is seeing the world Microsoft's way, the software giant argues in a brief filed in its ongoing antitrust case appeal.

The U.S. Department of Justice (DOJ) and 19 states acknowledge that Microsoft's decision to include Internet technologies in Windows benefited consumers and competition, Microsoft's attorneys say in the brief filed Monday.

Microsoft also says the government is moving away from its claim that the company tried to illegally bundle Windows 95 and 98 with Internet Explorer.

The position is not sustainable, and Microsoft believes it is "fatal" to the government's case, says Jim Cullinan, a company spokesperson.

In the 75-page brief, the high-tech titan also points to evidence of continued competition in the browser market in 1998 and argues that the government has not shown that Microsoft had "monopoly power" or engaged in anticompetitive conduct. It further hones in on public comments made by Judge Thomas Penfield Jackson, which the company believes show animosity toward Microsoft.

A DOJ spokesperson declines comment on the latest brief.

Claims Judge Was Partial

Microsoft suggests that the government has conceded that it did not violate antitrust laws by "offering IE [Internet Explorer] to [vendors] in a bundle with Windows at no extra charge," according to the brief. It goes on to say that the government admits the district court found the company's conduct lawful.

Ken Auletta, a writer for The New Yorker magazine who has written a book about the antitrust case, gets himself into the legal record of the case in the brief. His comments are used by Microsoft to point out Jackson's dislike for the company.

"The district judge's repeated public comments also demonstrate an animus towards Microsoft so strong that it inevitably infected his rulings," the brief states. "For example, Auletta reports that the district judge compared Microsoft executives to unremorseful gang members convicted of brutal, execution-style murders and criticized Microsoft's CEO [chief executive officer] for having a 'Napoleonic concept of himself and his company.' Indeed, in the public eye, the district judge has joined the fray as an adversary of Microsoft."

Feds Defend Judge, Ruling

Most recently, on January 12, the DOJ defended Jackson's ruling as well as the judge's conduct in and out of the courtroom in its own appellate brief. Jackson ruled in April that Microsoft has used its dominance in the operating systems market to quash competition. Accepting a DOJ proposal, he ordered Microsoft split into two companies. One company would control the Windows operating system, while the other would focus on applications, such as Microsoft Office and the Internet Explorer browser.

The government in its January 12 brief also says the judge's ruling is crucial, as it will "permit competition" rather than having Microsoft, the government, or the courts influence the marketplace.

The appellate brief process began in November when Microsoft submitted its initial filing, which suggests Jackson's ruling is flawed. Microsoft also contends Jackson's comments since his ruling to split the company show antagonism toward the software company.

DOJ officials are expected to file their final brief to the appellate court on February 9. Oral arguments before the U.S. Court of Appeals are set for February 26 and 27.

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