Nevertheless, the agency argued today that the company's appeal request to bar the public from pretrial depositions should not be granted, according to documents filed today in federal court.
Although the government has admitted that it does not care for the 1913 law called Publicity in Taking Evidence Act, it says U.S. District Court Judge Thomas Penfield Jackson is in the right when he ruled Tuesday in favor of allowing the public to attend the pretrial questioning of Gates and 16 other top Microsoft executives.
"Microsoft's claim of irreparable harm is speculative and insubstantial," federal lawyers wrote.
On Wednesday, Microsoft sought a stay of Jackson's order, and after he denied the request, the company appealed to the higher U.S. Circuit Court of Appeals for the District of Columbia.
Several news organizations are seeking access to pretrial questioning under the publicity in evidence act, which applies only to antitrust cases. The public is not allowed to witness pretrial depositions for other matters.
Microsoft has said all along that it is concerned about preserving the confidentiality of its trade secrets and source code, which it has likened to the "formula for Coca-Cola."
"We believe the proper forum for airing this information is in the courtroom during the trial," said Microsoft spokesman Jim Cullinan.
"The United States shares Microsoft's concern about the wisdom of the Publicity in Taking Evidence Act," today's DOJ response states. "Indeed, the Justice Department recommended to Congress last year that the act, which is uniquely applicable to civil antitrust actions brought by the United States, be repealed."
However, Congress did not repeal the 85-year-old law, and therefore, the DOJ maintains, it was necessary that Microsoft's appeal be denied.
An appellate court decision on the stay motion will not come until early next week at the earliest. Microsoft lawyers have until 10 a.m. ET Monday to respond to today's government filings.
Also hanging in the balance next week is a decision on whether to delay the start date of the trial, which currently is set for September 8. Remaining at issue should the higher court refuse Microsoft's appeal are the procedures, including how many people will be allowed to attend and if cameras will be permitted, for conducting the depositions by Gates and other Redmond executives.
The department's opposition to public access in antitrust cases stems from a House Judiciary Committee oversight hearing last year in which Rep. Henry Hyde (R-Illinois) asked regulators to advise changes to U.S. antitrust laws.
The DOJ told Hyde the publicity in evidence act should be repealed for uniformity's sake, spokeswoman Gina Talamona said.
"We do not believe that different procedures should apply regarding the openness of depositions in antitrust cases from other civil cases," Justice Department attorneys wrote last year. "Indeed, such a requirement could raise unnecessary complications in certain instances. For example, in a high-profile civil litigation, it is possible that a large number of people may desire to be present at a given deposition."
The Justice Department and 20 states filed a broad antitrust case against Microsoft in May charging that the company has used its monopoly in the desktop operating system market to gain leverage in other business areas, including the market for Web browsers.