• Recommend:
• 0 Comments

Microsoft Argues Its Case in Court

Appeal hearing marked by sharp questioning; ruling expected in two weeks.

By Margret Johnston, PCWorld   

In 20 minutes allotted to present Microsoft%squots case before the U.S. Court of Appeals for the District of Columbia, Microsoft%squots lawyer Richard J. Urowsky said that U.S. District Court Judge Thomas Penfield Jackson%squots preliminary injunction was entered without providing notice to Microsoft, and without holding an evidentiary hearing or making specific findings of fact. The preliminary injunction resulted from a contempt of court charge brought by the U.S. Department of Justice, which claimed that the software company was not abiding by a 1995 consent decree intended to rein in anticompetitive practices.

Asked by Judge Patricia Wald what Microsoft would have done differently had it known the preliminary injunction was impending, Urowsky said the company would have required proof that there were plaintiffs who suffered injury by the inclusion of the browser in the operating system, and would also have proved that no PC manufacturers would accept the %dquotdegraded technology%dquot the Department of Justice demanded that it offer.

%dquotNo computer maker has availed itself of the version of Windows 95 that the government required Microsoft to provide,%dquot Urowsky said.

Microsoft is also seeking disqualification of a special master appointed by Jackson, Harvard University law professor Lawrence Lessig. Urowsky said today that Microsoft was not given opportunity to present evidence because findings of fact were left to the special master.

Wald questioned Urowsky as to why Microsoft objected to the special master, saying %dquotJudges, smart as we are, don%squott understand every last facet%dquot of a highly technical case. %dquotWhat is the core of your objection to a special master doing it?%dquot she asked.

%dquotMicrosoft believes it%squots an unlawful delegation,%dquot Urowsky replied.

However, Wald immediately demurred, saying %dquotIt wasn%squott unlawfully delegated.%dquot

Apparently unwilling to give the judge the last word, Urowsky said, %dquotWe respectfully disagree with that.%dquot

The judges also probed Microsoft%squots definition of a nonintegrated product versus one that is integrated with the operating system.

Wald asked Urowsky if putting any software into Windows 95 means that it is integrated; the Microsoft lawyer replied that the company%squots position is that anything put into the operating system is integrated, and that it informed the government at the time the consent decree was written that it preserved the right to do that.

Judge A. Raymond Randolph queried Microsoft%squots interpretation of integration in the consent decree, asking Douglas Melamed, principal deputy attorney general for the antitrust division of the Justice Department, whether the government would consider it a violation of the decree if Microsoft integrated a product into the operating system that it had never sold separately.

Melamed conceded that if Microsoft had never sold a product on its own, then later integrated the product into the operating system, then that would not be in violation of the consent decree.

During Microsoft%squots rebuttal, when Urowsky argued that the Justice Department%squots interpretation of the consent decree was %dquotnot a procompetitive policy%dquot and the company should be allowed to integrate products into the operating system as it wishes, Wald interrupted him.

%dquotIsn%squott that a bit like having your cake and eating it too?%dquot Wald asked the Microsoft attorney.

%dquotThat is correct, because if there is consumer demand for it, we want to meet that demand. That is procompetitive,%dquot Urowsky said.

A ruling on the appeal could be issued in as early as two weeks, according to analysts who attended the hearing today.