According to Microsoft, the Justice Department has no legal leg to stand on in opposing the company's request to block a preliminary injunction from applying to Windows 98, the software giant argued today in a court brief.
The brief added that the government is falling back on flimsy arguments that Microsoft's motion fails to follow court procedure.
Microsoft's document, filed with the U.S. Court of Appeals for the District of Columbia, is the third and final brief on the issue. In it, the Redmond company responded to the arguments the government made to the court yesterday that Microsoft's request for a stay "insofar as it relates to Windows 98" was made at the last minute in an attempt to "use exigent circumstances entirely of its own making as an excuse for bypassing the district court," in violation of court rules. (See related story)
U.S. District Judge Thomas Penfield Jackson issued the preliminary injunction in December, ordering Microsoft to separate its Internet Explorer browser from all of its PC operating systems "including Windows 95 and any successor versions thereof." The order had been under appeal for more five months when Microsoft filed the motion Tuesday seeking to clarify that it did not apply to Windows 98.
"The DOJ does not dispute [in its filing yesterday] that entry of the preliminary injunction insofar as it relates to Windows 98 was entirely improper," Microsoft attorneys argued in their brief today. "In these circumstances, no possible basis exists for enforcing the preliminary injunction against Windows 98."
As a result, Microsoft continued, "the DOJ is reduced to advancing the procedural arguments" in arguing against the motion, which essentially boiled down to a contention that the software giant should have sought a clarification of the injunction with Jackson, rather than filing a motion with the Court of Appeals.
"Any 'clarification' of the preliminary injunction that alters [the injunction] would constitute an impermissible modification of the order while on appeal," the company argued. "For this reason, returning to the district court for an order 'clarifying' or 'construing' the preliminary injunction--as the DOJ suggest Microsoft should have done--would have been an invitation to the district court to exceed its jurisdiction."
It's unclear where the appeals court will come out on the issue, but according to Rich Gray, an antitrust attorney with Bergeson, Eliopoulos, Grady, & Gray, the government appeared to have the better case.
"There's a pretty strong argument that as a technical matter, any issues about the interpretation of Jackson's preliminary injunction as to whether it applies to Windows 98 should have been taken to Jackson first," he said. Gray dismissed Microsoft's argument that it was unable to seek such a clarification when Jackson first issued the order because Windows 98 was still under development.
"It's been clear for a very long time that Windows 98 was going to include browser functionality," he added.