WASHINGTON – The Justice Department and Microsoft may be trying to eke out a settlement, but friendly talks certainly haven't muted their courtroom quarrel.
Late Monday, the government and state attorneys general filed their latest legal brief, arguing that US District Judge Thomas Penfield Jackson should rule that the software company had run afoul of antitrust law and mete out appropriate punishment.
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But what should that be? A breakup? Restrictions on Windows pricing, or what companies Microsoft can, um, accumulate?
Unfortunately, the so-called conclusions of law don't even provide strong hints. The laconic recommendation: "The Court should conclude that Microsoft has violated Sections 1 and 2 of the Sherman Act and proceed to consider the appropriate remedy."
In Jackson's 207-page findings of fact, released in November, he condemned Microsoft in no uncertain terms. But he did not – and in lawsuits like this, technicalities count – rule that the company had violated the Sherman Act, which restricts the actions of companies that have monopoly power.
The Justice Department argues in its 200KB proposed legal conclusions that the history of the computer industry, as interpreted by Jackson, establishes "that Microsoft violated the Sherman Act in at least four ways."
The DOJ alleges that Microsoft tried to make it more difficult for competitors to sell Intel-based operating systems, that it illegally tied Internet Explorer to Windows, that MS tried to thwart competition in contracts with computer makers and online services, and it unlawfully tried to bar Netscape from selling its browser to consumers.
Microsoft has steadfastly denied the allegations. It will submit its written reply to the government on 17 January, and both sides will have a chance to counter each other's argument in subsequent briefs.
In the proposed conclusions they hope the judge will adopt, the DOJ and the states say that even if future technologies may undermine Windows – something they don't expect to happen – "that possibility does not undermine the existence of monopoly power during the 1995-1998 period when Microsoft undertook the monopolizing actions at issue."
The filing compares Microsoft's alleged efforts to convince Netscape not to compete to a 1984 price fixing proposal the government sued over in the US v. American Airlines case. "It was an explicit threat, backed by the ability and willingness of Microsoft to use its Windows monopoly power to pressure Netscape to accept, and to punish Netscape for refusing."
Both sides are meeting privately this week with Judge Richard Posner in Chicago to see if they can settle the ongoing antitrust lawsuit. Posner, chief judge of the Seventh US Court of Appeals, is a well-respected expert on antitrust regulation and prolific author who writes approximately one book a year.
He agreed to attempt to mediate the case at the request of Judge Jackson, who is trying the case.
