US District Judge Thomas Penfield Jackson on Thursday ruled that Microsoft must surrender nearly all evidence requested by the government in its ongoing preparation for the scheduled Sept. 23 antitrust trial against Microsoft.
In a 45-minute hearing held in his Washington, DC courtroom, Jackson told Microsoft (Nasdaq:MSFT) officials that, although the federal government had requested evidence that was not specified in its previous complaints, the documents had to be handed over in any case. Microsoft attorneys on Wednesday had asked Jackson to deny the government's motion to force the world's largest PC software maker to hand over the disputed information on grounds that it would broaden the proceeding without giving Microsoft time to prepare properly for the trial.
With the ruling in hand, Microsoft must now address allegations that it attempted to coerce Apple (Nasdaq:AAPL) and Intel (Nasdaq:INTC) into abandoning their efforts to produce technologies that allow for "streaming," or continuous play of audio and video over the Internet. In addition, Microsoft must answer similar accusations relating to their dealings with RealNetworks (Nasdaq:RNWK). The two sides agreed to continue negotiations over what access government attorneys would have to Microsoft databases detailing terms under which manufacturers license Microsoft products.
In his presentation before Jackson, Microsoft attorney John Warden said the DoJ and states had failed to make their case for the inclusion of all the evidence they wanted. The original case, he said, dealt principally with Microsoft's alleged efforts to monopolize the market for Internet browsers. Since browsers are only part of the universe of software products, bringing allegations regarding other companies would be unfair. "There has to be an end to what we have to defend ourselves against," Warden said.
Jackson conceded Justice had built much of its case around Netscape. Nonetheless, he said, Microsoft still stands accused of attempting to maintain its monopoly over the PC operating system as well as attempting to gain leverage over computer manufacturers and Internet content providers through exclusionary licensing practices. Warden agreed, but added "I think the proper thing would be for an amendment of the complaint to occur."
Government attorney David Boies conceded the government had addressed only Netscape in arguing that Microsoft was attempting to dominate the market for Internet browsers. Nonetheless, he said, Microsoft's moves against other competitors remain important to the case, since they show a pattern of behaviour that will contribute to the government case. "What we're talking about here is evidence, not claims," he said. He also told Microsoft to surrender evidence covering Microsoft's dealings with computer manufacturers related to Apple's QuickTime technology. The sides agreed to continue negotiating over how much of Microsoft's database of terms and agreements with computer manufacturers needed to be relinquished in order to comply with antitrust officials' subpoenas.
Jackson said he would consider which of the issues raised could be included in the trial scheduled to start Sept. 23. But Warden insisted Microsoft would need additional time to prepare for trial. Jackson said he would entertain a motion for extension at a scheduled Sept. 17 pre-trial conference.
Prior to Thursday's hearing, government attorneys charged that Microsoft had engaged in a pattern of unfair business practices to hobble competing products made by companies besides Netscape. In the case of RealNetworks, the Justice Department alleged earlier this week that Microsoft applied pressure to force the company to limit its agreements with unnamed computer makers so that Microsoft could grab much of that market.
Java allegations raised Sun Microsystems (SUNW) Java technology, similarly, was allegedly subject to unfair assaults through Microsoft's development of a "polluted" Java meant to confuse the marketplace and undermine one of the most strongest competing technologies to Microsoft's Windows operating system. Though the Justice Department's May complaint mentioned Java in passing, it only recently released evidence detailing the degree to which it was allegedly under assault by Microsoft.
Department attorneys had also recently asked Microsoft for information regarding Microsoft's actions regarding DR-DOS. A competitor to Microsoft's MS-DOS operating system, DR-DOS was all but driven from the marketplace by spurious warning messages generated when users tried to use early versions of Windows 3.1 and DR-DOS together, critics say. Microsoft has denied the charge.