Microsoft Alleges Bias in Antitrust Case
In a final written salvo before its antitrust appeal moves to oral arguments next month, Microsoft Corp. on Monday blasted U.S. District Judge Thomas Penfield Jackson and challenged the government’s claim that the company broke antitrust law.
Microsoft, in a 75-page brief filed with the U.S. Court of Appeals in Washington, accused Jackson of acting improperly by harshly criticizing the company outside of court.
The company also attacked what it said was the weakest part of the government’s case: the claim that Microsoft illegally tied, or bundled, its Internet Explorer Web browser with the flagship Windows 95 and 98 operating systems.
“The fact that so many users in 1995 and 1996 chose to use [rival browser] Navigator rather than IE [Internet Explorer] despite the presence of an IE icon on the desktop of every copy of Windows 95 . . . demonstrates that the alleged tie had no competitive impact whatsoever,” Microsoft said in its brief.
Microsoft’s volleys are aimed at persuading the appeals court to overturn Jackson’s order last June that the company be split into two because it had tried to muscle out competitors and corner the browser market.
In a similar dispute 2 1/2 years ago, the appeals court reversed Jackson after he ruled that Microsoft violated a 1995 consent decree by tying its Internet Explorer browser with Windows. Experts are divided over whether the conservative appeals court will reach the same conclusion this time.
It also remains to be seen whether the Bush administration will pursue the Microsoft case as aggressively as the Clinton administration, which filed the landmark case in 1998. Atty. Gen.-designate John Ashcroft said at his confirmation hearing that he would withhold judgment on the complex case until he could confer with the Justice Department’s antitrust division.
Experts agree that the weakest part of the government’s case is its claim that the software giant illegally bundled Internet Explorer with Windows to take over the market and thwart archrival Netscape.
“If the government loses the tying claim, it is inconceivable they would achieve the structural remedy” of a breakup, said George Washington University law professor William E. Kovacic. “It also poses a risk to the rest of the case.”
Others note that Microsoft faces an uphill battle in trying to get the appeals court to sanction or discredit Jackson because of his alleged bias.
“It is very hard to win claims like that on the basis of newspaper articles” or books, said Eleanor Fox, a law professor at New York University.
In its brief, Microsoft said Jackson demonstrated “an animus toward Microsoft so strong that it inevitably infected his rulings.” The company cited a new book in which Jackson compares Microsoft executives to unremorseful gang members and likens company Chairman Bill Gates to Napoleon.
