The nine states still pursuing Microsoft in a federal antitrust
case took an opportunity in a court filing to remind the company
that the remedy phase of the trial is not about whether the
software maker broke the law, but about what should be done about
its operating system monopoly.
Responding to Microsoft's request for partial judgment as a matter
of law, the states blasted the company for seeking to evade
responsibility for illegally "tying" the software code for the
Windows operating system together with middleware applications such
as Microsoft Office or Internet Explorer. Microsoft's motion for
partial judgment, if granted by the judge, would end the case
without requiring Microsoft to stop "commingling" code in its
software products.
"Microsoft's arguments, notably barren of legal authority do not
come close to supporting its request for judgment as a matter of
law," the states said in their response filed with the US District
Court for the District of Columbia.
Microsoft proposed motions to the court for judgment as a matter of
law and partial judgment last week. It asked the court to remove
the "unbinding" provision of the litigating states' proposed
remedy. The states are asking the court to require Microsoft to
sell a stripped-down version of Windows without applications such
as Internet Explorer and MSN Instant Messenger built in, preventing
commingled code that inhibits competition from other software
makers.
Bill Gates, Microsoft's founder and chief software architect,
testified in court this week that the states' demand would fragment
Windows into multiple versions and harm consumers. In the filing,
the states said the argument over commingling was legally
irrelevant.
"Microsoft's argument about "consumer benefit" proceeds from a
faulty premise - namely, that its misguided belief that the
[anti]competitive significance of commingling software code is
still a question that is subject to debate," the document says,
citing a ruling in the US Court of Appeals for the District of
Columbia. The Appeals Court has already found Microsoft's
commingled code to be anticompetitive, the states said.
District Judge Colleen Kollar-Kotelly will determine what remedy
can be taken to prevent anticompetitive behaviour from Microsoft in
the future. The litigating states want conduct restrictions on
Microsoft in the PC operating system market, as well as on newer
markets such as Web services, handheld devices, set-top box and
server operating systems.
Last year the Appeals Court upheld a lower court's decision that
Microsoft violated antitrust law by maintaining its monopoly in the
PC operating system market through anticompetitive behaviour. The
court rejected the antitrust remedies given by the lower court,
however.