Microsoft, DOJ file to influence antitrust findings

Antitrust prosecutors catalogued a series of evidence they say proves Microsoft attempted to monopolize the browser market as it competed against Netscape Communications, now a division of America Online. The government also claimed that Microsoft's actions harmed consumers by limiting their choice of Web browsers and other technology and by keeping prices artificially high.

Microsoft, on the other hand, contended that the same evidence shows its conduct has been completely legal and that consumers have benefited from the low price and popularity of the Windows operating system.

The briefs, filed in U.S. District Court in Washington, D.C., propose "findings of fact" that Judge Thomas Penfield Jackson should adopt as a foundation for an ultimate ruling in the case.

Once Judge Jackson issues the final findings of fact, they will have a powerful effect on the remainder of the case. For example, a finding that Microsoft is a monopolist that harms consumers would be fodder for the government to argue that the software giant should be broken up. On the other hand, a finding that Microsoft does not meet the legal definition of a monopolist could be fatal to the government's case.

The briefs come in a case brought in May of 1998 in which the Justice Department and 19 states allege Microsoft is a monopolist that used its power to stifle competition in the software market. They claim that Microsoft viewed Netscape's Navigator browser as a threat to Windows and sought to crush it by folding its own browser into Windows, which runs on about 90 percent of computers. The government also claims Microsoft illegally tried to kill other so-called middleware technologies that sit on top of Windows, such as Sun Microsystems' Java programming language and Apple Computer's QuickTime multimedia player.

Microsoft has vigorously denied the charges, arguing that there is no evidence it has violated any laws and that the suit is a misguided attempt to prop up competitors who can not compete on the merits. It contends it is not a monopolist and that browsing technology is standard in the Linux, Apple and Be operating systems, among others. Finally, it maintains that the actions it is accused of are standard industry practices and that the fall of the Navigator browser are a result of missteps by Netscape.

"The record illustrates how Microsoft's tactics to defeat Netscape were emblematic of a larger pattern and practice of anticompetitive conduct--conduct designed to consistently and systematically use the full weight and influence of its monopoly to wipe out any and all incipient middleware threats," the government's brief argued. "The evidence, including Microsoft's own documents, shows that Microsoft's conduct has vitiated the threat non-Microsoft browsers posed to its monopoly, weakened the Java threat, and has deterred, and will continue to deter, other such threats from arising."

Microsoft's brief, however, provides a starkly different picture.

"Plaintiffs apparently wrote their proposed findings with a single goal in mind--to create the impression that their claims are supported by a mountain of evidence," attorneys for the software giant argue. "The reality is otherwise."

The brief goes on to claim that most of the government's evidence comes from the same out-of-context "snippets" and from documents and testimony based on third-hand hearsay that is inadmissible under courtroom procedure.

Microsoft also claims that the government failed to prove the company is a monopolist, that it "substantially" foreclosed channels for Netscape to distribute its browser, or that any of Microsoft's actions harmed consumers. All three elements are necessary for the government to prevail.

"We don't think the government has met its burden of proof on the key facts," Microsoft associate general counsel Tom Burt said in a previous interview. "The facts demonstrate that Microsoft has not violated the antitrust laws and that ultimately that Microsoft and any other company ... has the right to modify and design its products in a way that benefits consumers."

Today's briefs essentially revise briefs both parties filed last month. The two sides are set to square off in court on September 21. There is no deadline for Jackson to issue his findings of fact.