Microsoft: States insist 'commingling' must end

The nine states still pursuing Microsoft in a federal antitrust case took an opportunity in a court filing to remind the company...

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.

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