US Report: Microsoft quotes Netscape to attack antitrust lawsuit

Microsoft, using its chief rival's words to attack the Justice Department's case as "fatally flawed", asked the courts on Tuesday to dismiss the antitrust lawsuit filed by the government.
Written by Charles Cooper, Contributor

In a 48-page brief, Microsoft requested a summary judgement, saying that evidence provided by Netscape Communications bore out its claim that the company's Web browser software cannot be separated from Windows 98 without crippling the operating system.

In a detailed 48-page legal brief, Microsoft urged Federal District Court Judge Thomas Penfield Jackson "based on the facts and the recent appeals court decision, we believe the case should be dismissed now, without a long and costly trial", said William Neukom, Microsoft's senior vice president for law and corporate affairs said in a statement.

Microsoft attacked the government for "last-minute allegations that were not part" of the May 1998 antitrust lawsuit.

The software maker said the Justice Department was seeking "to distract the court from the fatal defects in their claims by slinging as much mud as they can at the defendant and by giving prominence to numerous irrelevant facts in a desperate attempt to cloud the issues". DoJ and state attorneys claim Microsoft has tried to obliterate competition in the market for Internet software by bundling its Internet Explorer browser with the Windows operating system. That tying arrangement, they say, has given Microsoft a lever with which to deprive Netscape of much-needed revenues. DoJ attorneys argue Microsoft also wants to kill off Windows competitor Java by doing away with Netscape, whose browser serves as its main distribution channel to most consumers.

In addition, DoJ officials say, Microsoft has tried to steer the market for Internet software by paying Internet service providers to promote their browser at the expense of Netscape's. But those assertions aren't enough to continue with the case, company lawyers told Judge Thomas Penfield Jackson. Government officials "bear the burden of proof on each and every element of their purported claims", they wrote. "If they cannot prove any one essential element of a claim, then that claim must be dismissed."

As in previous statements, Microsoft asserted its bundling of the browser with the operating is legal. While Justice has tried to portray the two parts as separate products, Microsoft says the DoJ "cannot prove that Windows 98 and the Internet Explorer technologies incorporated in that operating system are 'separate' products". In addition to restating its contention that Internet Explorer code cannot safely be removed from Windows 98, Microsoft returned to a familiar defence saying consumers and software developers benefited from the integration of IE and Windows 98.

Microsoft attorneys leaned heavily on much previous case law which has voided antitrust proceedings when defendants have shown a "plausible benefit" to the consumer that results from allegedly improper tying arrangements. "Wholly apart from the question of whether two separate products are involved, plaintiffs cannot prove that the inclusion of Internet Explorer technologies in Windows 98 fails to achieve any technologically beneficial result," they wrote. "Plaintiffs cannot prove that any OEM has been forced to purchase a separate tied product because Internet Explorer technologies are encompassed by the single royalty that OEMs pay for Windows 98."

The company also denied charges it had restricted the ability of Netscape and any other competitor to distribute Web browsers. Microsoft quoted a March 6, 1998 letter from Netscape to Assistant Attorney General Joel Klein informing the government's chief trustbuster that the browser and the operating system could not be separated "without severely interfering with the operating system".

A spokesman for Netscape did not respond to requests seeking comment.

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