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MS: DoJ is trying to rewrite the law ?

As friends and foes of Microsoft line up to submit legal briefs in the antitrust case in Washington, D.C., the company filed documents Tuesday rebutting the charges against it.
Written by Lisa M. Bowman, Contributor

In two documents filed Tuesday in US District Court for the District of Columbia (Response to Plaintiffs' Joint Reply and Response to States), Microsoft argued that the DoJ and 19 state attorneys general are trying to rewrite antitrust law and force the courts to implement unprecedented restrictions on technology products.

In addition, the company asked that several state claims be dismissed because, among other things, federal copyright law pre-empts state law and the court didn't find that Microsoft's actions had local consequences in each state.

The filings are Microsoft's chance to respond to a DoJ document submitted last week in which government trustbusters reiterated many of their charges against the company -- that it illegally tied its Web browser to Windows and struck exclusive deals with the intent of maintaining a monopoly. In that document the DoJ also claimed Microsoft took "potshots," and Judge Thomas Penfield Jackson's scathing finding, issued in November, said the company is a predatory monopolist.

In Tuesday's filings Microsoft defended its actions and accused the DoJ and 19 state attorneys of making sweeping assertions full of empty rhetoric in an attempt to bolster claims that the company violated antitrust law. "Make no mistake, plaintiffs' case is not supported by existing case law. This Court should decline plaintiffs' invitation to rewrite antitrust laws to protect Microsoft's competitors at the expense of consumers," the document said.

The final flurry of documents from both sides is intended to guide Judge Jackson as he prepares to issue his ultimate ruling in the case. As it has in previous filings, Microsoft maintained that Windows 98 is a "single, integrated" product that includes the browser, pointing out that an earlier appeals court already has allowed Microsoft to combine Internet software with the operating system. In its filing, Microsoft attorneys cautioned Judge Jackson that he would be ignoring legal precedent if he sided with the DoJ and found that Microsoft illegally integrated the products. "If this court were to do so, it would be the first court in the history of American law to sustain a technological tying claim," Microsoft attorneys wrote. In addition, the company also defended its right to restrict computer makers from altering the startup screen -- a move the DoJ said was anti-competitive -- because it owns the copyright on Windows.

The filing is expected to be the final submission from both sides before they meet again in Judge Jackson's courtroom on February 22 for more oral arguments. After that, if settlement talks haven't yielded a conclusion, the judge is expected to issue his final ruling, determining whether or not Microsoft's actions broke the law.

The sides also have been meeting for settlement talks ordered by Judge Jackson, who appointed US Circuit Judge Richard Posner to oversee the discussions.

Meanwhile, both outsiders and those involved in the case are looking toward remedies, should Jackson declare Microsoft guilty. A few weeks ago several media outlets reported that the DoJ favoured a breakup. Since then at least one state attorney general has criticised that approach.

Last week the Progress & Freedom Foundation, a conservative think tank, proposed breaking up the company, saying that option would require the least amount of government interference.

Meanwhile, friend-of-the-court briefs supporting both sides are rolling in. The Association for Competitive Technology has filed a document in favour of Microsoft's position, and the Software and Information Industries Association -- which counts Microsoft as one of its largest members -- has filed a brief in support of the DoJ.

Judge Jackson also invited Harvard Professor and Internet legal expert Lawrence Lessig, who was appointed a special master in an earlier Microsoft antitrust case but then removed after Microsoft protested, to weigh in on this trial.

In his brief, Lessig addresses the tying claim, arguing that depending on the legal test used, IE and Windows can be considered either separate products or an integrated one under antitrust law. "This Court may conclude either that the government has succeeded in establishing a 'separate product' for purposes of 'tying' under Section 1 of the Sherman Act, or that it has not," Lessig writes in his conclusion.

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