Friends, foes file comments in Microsoft antitrust case

Harvard Law School professor Lawrence Lessig is expected to file his amicus, or "friend of the court," brief sometime today and post it on the Berkman Center for Internet & Society page.

The Software and Information Industry Association (SIIA), the largest software trade association, will also file an amicus brief on behalf of the Justice Department (DOJ) sometime before 1 p.m. PST. In addition, antitrust expert and onetime Supreme Court nominee Robert Bork is expected to file another brief on behalf of the 19 states involved in the trial.

In the antitrust case, the DOJ and the states allege Microsoft used its operating system monopoly to crush browser rival Netscape Communications, now owned by America Online. U.S. District Judge Thomas Penfield Jackson issued his scathing "findings of fact" on the matter in November. In the document, Jackson concluded Microsoft is a powerful monopoly that used illegal means to preserve its Windows franchise and extend it into the Web browser market.

Today's briefs are not mandatory or binding on the parties involved, but they serve to illuminate or advise on points of law. In the midst of the filings--which set the stage for oral arguments slated for Feb. 22--Microsoft will file a rebuttal brief to the government's Jan. 25 rebuttal brief. The government responded to Microsoft's "conclusions of law" filed a week earlier.

Yesterday, the Association for Competitive Technology (ACT), a group with close ties to Microsoft, filed early an amicus brief on behalf of the Redmond, Wash.-based software giant. The SIIA early today worked on last-minute changes to its brief in response to the one filed yesterday by ACT.

"They're giving us an opportunity to respond to their brief, which is a gift really," said SIIA president Ken Wasch. "You never file a brief early. Maybe they were just so excited about having Griffin Bell's name on it."

ACT touted that it had rallied major legal luminaries in support of Microsoft, including Bell, former attorney general under the Carter administration, former Johnson administration attorney general Nicholas Katzenbach and former Bush administration legal counsel Boyden Gray. The Washington, D.C., law firm of Wilmer, Cutler & Pickering authored the brief.

SIIA, which is the largest industry trade organization, was formed last year by the merger of the powerful Software Publishers Association and the Information Industry Association.

CNET News.com obtained a draft copy of the SIIA's brief, which jabs at ACT.

"Unlike some groups, such as the Association for Competitive Technology (ACT), which was founded in 1998 specifically to oppose the enforcement of the antitrust laws against Microsoft...SIIA does not screen prospective members to ensure a uniform point of view," according to the brief.

ACT has avoided disclosing the extent of its relationship with Microsoft, but sources close to the association suggest Microsoft is its biggest backer.

ACT's brief took the position that antitrust law fosters the creation of lawful monopolies such as Microsoft and that aggressive competition benefits consumers. The group accepted Jackson's findings of fact as true, but concluded that the judge's findings show no antitrust violation.

Not surprisingly, the SIIA brief argues that the findings of fact point the other way.

Microsoft, which is also a member of SIIA, opposed the group's filing the brief on behalf of the Justice Department.

"We had a spirited board meeting on Monday, Jan. 24, to discuss the brief," Wasch said. "It was civil, but spirited."

Bob Herbold, Microsoft's chief operating officer, is a member of SIIA's board of directors, so "we couldn't approve a brief attacking Microsoft without Microsoft having an opportunity to argue against that position," Wasch said.

Microsoft wasn't the only company to argue against filing the brief, but Wasch wouldn't say who else objected.

"It's not everybody against Microsoft. There are some people who believe the case is misguided and we shouldn't be involved in it," he said.

Sources close to the trade group said that of the 19 board members, 10 abstained from voting, seven voted for submitting the brief and two others--one representing Microsoft--opposed the action.