February 07, 2001, 3:44 PM — The U.S. Department of Justice and 19 states have acknowledged that Microsoft's decision to include Internet technologies in its Windows operating system benefited consumers and competition, according to a brief filed by Microsoft in its federal antitrust case on Monday.
Microsoft also argued that the government is continuing to move away from its claim that the company tried to illegally bundle Windows 95 and 98 with Internet Explorer (IE).
The position is not sustainable, and Microsoft believes it is "fatal" to the government's case, said Jim Cullinan, a company spokesman.
In the 75-page brief, the high-tech titan also pointed out evidence of continued competition in the browser market in 1998 and argued that the government has not shown that Microsoft had "monopoly power" or engaged in anti-competitive conduct. It further honed in on public comments made by Judge Thomas Penfield Jackson, which the company believes show animosity toward Microsoft.
A Justice Department spokeswoman declined comment on the latest brief.
Microsoft suggested that the government has conceded that it did not violate antitrust laws by "offering IE to OEMs in a bundle with Windows at no extra charge," according to the brief. It goes on to say that the government admits the district court found the company's conduct "in developing a Web browser and offering it to OEMs and users with Windows to be lawful."
Ken Auletta, a writer for The New Yorker magazine who has written a book about the antitrust case, got himself into the legal record of the case in the brief. His comments are used by Microsoft to point out Jackson's dislike for the company.
"The district judge's repeated public comments also demonstrate an animus towards Microsoft so strong that it inevitably infected his rulings," the brief stated. "For example, Auletta reported that the district judge compared Microsoft executives to unremorseful gang members convicted of brutal, execution-style murders and criticized Microsoft's CEO for having a 'Napoleonic concept of himself and his company.' Indeed, in the public eye, the district judge has joined the fray as an adversary of Microsoft."
Most recently, on Jan. 12, the Justice Department defended Jackson's ruling as well as the judge's conduct in and out of the courtroom in its own appellate brief. Jackson ruled on June 7 that Microsoft had used its dominance in the OS to quash competition. Accepting a Justice Department proposal, he ruled to split Microsoft into two companies. One company would control the Windows operating system, while the other would focus on applications, such as Microsoft Office and the IE browser.