MS to court: Keep us together

The software giant urges an appeals court to overturn or send back a breakup ruling by US district judge Thomas Penfield Jackson

Calling earlier proceedings "infected with error", Microsoft pleaded with an appeals court to keep the company intact in a 150-page brief filed Monday.

Claiming US district judge Thomas Penfield Jackson was biased against Microsoft, the company urged the appeals court to overturn a breakup order or to order a new trial by another district court judge.

Jackson handed the Department of Justice a victory in June when he ruled that a breakup was the best remedy for a company that he said had illegally leveraged its monopoly to move into other markets.

Microsoft immediately appealed, and the US Court of Appeals for the District of Columbia must now decide whether to let Jackson's ruling stand.

The appeals brief marked the opening salvo in an appeals process that could last well into 2001. Whichever side loses is expected to appeal to the US Supreme Court.

Microsoft attorneys repeatedly attacked Jackson in the documents filed Monday, saying that he did not understand antitrust laws, that he changed the rules mid-trial, and that he allowed into evidence magazine and newspaper articles they claimed were "inadmissible hearsay".

What's more, the company lambasted the judge for the many media interviews he did after the trial.

"By repeatedly commenting on the merits of the case in the press, the district judge has cast himself in the public's eye as a participant in the controversy, thereby compromising the appearance of impartiality, if not demonstrating actual bias against Microsoft," the company's attorneys said in the filing.

Because the appeals court only considers evidence and facts already entered at trial, Microsoft's arguments mirrored those made both in the courtroom, and in earlier filings.

But the company may have a hard time overturning Jackson's findings of fact, which ruled that Microsoft monopolised the market for PC operating systems. Normally, appellate judges defer to lower courts on facts and only consider legal arguments.

Nevertheless, Microsoft claimed it could not control prices and did not keep Netscape's Navigator or Sun Microsystem's Java from the market.

"Given the competitive nature of the software industry, the district court's holding that Microsoft has monopoly power is contrary to commercial realities," the appeal said.

As for the breakup order, Microsoft argued that Jackson should not have denied the company's request for more hearings on the matter.

"The district court was not at liberty to enter sweeping relief, over Microsoft's objection, without conducting an evidentiary hearing and affording Microsoft an opportunity to present evidence on all disputed issues," the company's lawyers wrote.

Not surprisingly, the Justice Department downplayed Microsoft's attacks on Jackson and his breakup ruling.

In a prepared statement, the DoJ said, "[Jackson's] judgment is well-supported by the evidence offered during a 78-day trial, including thousands of pages of Microsoft's own documents. We are confident in our case and look forward to presenting it to the Court of Appeals." Unlike the District Court phase of the case, which was fought primarily in the courtroom, the appeals phase will consist mainly of legal filings.

Supporters of Microsoft, including the Association for Competitive Technology, also filed briefs Monday in an attempt to convince the court that a breakup would harm the industry.

The DoJ and its supporters have until 12 January to submit a reply, and Microsoft will have a chance for a rebuttal. The two sides aren't expected to meet in court again until late February, when oral arguments are scheduled. The court will then rule sometime after that.

Take me to the DoJ/Microsoft special.

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