WASHINGTON -- Microsoft and the Justice Department (DOJ) filed testy opposing briefs Friday in their federal antitrust case in preparation for closing arguments on 21 September.
The software company hopes its 700-page "findings of fact" -- with 1,512 separate and occasionally angry paragraphs -- will shore up its defense with US District Judge Thomas Penfield Jackson, and rebut accusations of monopolistic practices made by the Justice Department and some state attorneys general.
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Government lawyers say in a sometimes-snide reply brief that Microsoft's court filings "ignore most of the evidence against it, mischaracterize much of the evidence that is not ignored, and [make arguments that are] irrelevant even if true."
Microsoft argues that recent developments, such as the "upsurge of support for Linux" and AOL's purchase of Netscape, make the suit filed in May 1998 largely irrelevant. "AOL is now in a position of control with regard to usage of Web browsing software," the brief says.
"The government relies on assertions and statements that have no basis ... [in] fact. We take them to task for it," a Microsoft spokesman said.
Scattered throughout MS' brief are strongly worded jibes at the DOJ, such as calling government documents "rife with internal inconsistencies and [containing] stunning concessions" and saying rival companies such as AOL and Netscape "obviously would prefer less vigorous competition."
Both sides last month submitted their initial drafts of proposed findings of fact that Jackson will use to decide whether the company has a monopoly and engaged in activities that violated the Sherman Act.
Friday's paperwork includes a more finely honed set of arguments. These filings are important because, as trial judge, Jackson will rule on important factual questions like the presence of competition in the software industry, consumer benefits from integration, and whether MS illegally tied Explorer to Windows.
A major portion of the antitrust case involves Microsoft's alleged attempts to use its Windows monopoly to drive down Netscape's market share. Both sides agree that Navigator has a smaller percent of total users, but offer different explanations.
Microsoft's is simple: Internet Explorer became a better product, and this claim has been supported by many reviews cited by Executives. The DOJ offers a darker view, saying that Microsoft's partially exclusionary contracts with online services and computer makers "substantially foreclosed" Netscape from key distribution channels.
Critics of the DOJ case say that the software market has changed dramatically, even in the last year.
"I've seen cases where the judge showed every sign of coming down on one side but when the opinion came out, he came down on the other side. That's plausible ... because events have overtaken the case, and he's aware of those events," says Bob Levy, a lawyer at the Cato Institute who clerked for the DC district and appeals courts.
"All [Jackson] has to do is pick up the newspaper every day and see that markets are moving faster than the antitrust division could ever move."
The trial began in October 1998 with live and written testimony by 12 witnesses called by each side, and three rebuttal witnesses. A decision is expected in 2000.
