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MS, DOJ filings bolster positions

Setting the stage for a hearing Thursday, Microsoft and the Justice Department file briefs on whether the company is in contempt of court.

    Setting the stage for a ruling on a key issue in the high-profile antitrust battle between Microsoft and the Justice Department, both sides filed briefs late today laying out their positions on whether Microsoft is in contempt of court.

    The briefs--known in legal parlance as proposed findings of fact--outline concise facts in which legal arguments and conclusions are stripped away. MS and the $1 million question Each fact must cite a part of the court record that provides the relevant evidence. The briefs provide a way for each side to present its best version of the evidence.

    The government brought the case in late October, alleging that Microsoft's requirement that Windows 95 be shipped with the Internet Explorer browser violated terms of an antitrust settlement reached two years earlier. Microsoft contends that the 1995 consent decree specifically gives it the right to integrate products.

    In December, U.S. District Judge Thomas Penfield Jackson appointed a computer expert to study the case and make a recommendation by May 31. He ordered Microsoft to separate browsing software from all its Windows products in the meantime.

    Six days later, the Justice Department was back in court, alleging that Microsoft's plan to separate Internet Explorer only from older and "dysfunctional" versions of Windows violated both the letter and the spirit of the preliminary injunction. The government asked that Microsoft be fined $1 million for each day it was in contempt of the preliminary injunction.

    Both sides extensively debated the matter in a two-day hearing last week. Jackson ordered the parties to file the proposed findings of fact today and to be back in court for closing arguments Thursday. Jackson has not indicated when he will rule on the matter.

    The documents bring no new information to light, but they reiterate positions each side staked out months ago in the case, which has grown increasingly contentious. Microsoft, for example, points to an admission by a government witness that some Web browsing functions cannot be removed "without hurting Windows 95."

    Meanwhile, Justice Department attorneys repeat their oft-made charge that "because neither 'option' Microsoft offered...is commercially viable, Microsoft is, for all practical purposes" in violation of Jackson's order.

    Rich Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady, & Gray who has been following the case, said today's matchup goes to the government.

    He explained that both sides discuss at length an "add/remove" feature that removes the Internet Explorer icon from the Windows 95 desktop. Judge Jackson suggested in a court hearing that applying the utility to Windows may have been enough to comply with his order. Microsoft has insisted that the running the feature leaves the majority of the browser intact and therefore would not comply with the preliminary injunction.

    "The government is saying [to Microsoft], 'You could have and should have used the add/delete option.' Microsoft is almost saying, 'We read the court's order to say that wouldn't have been good enough,'" said Gray, who added that the government has outlined a good argument that Microsoft intentionally proposed an unworkable solution.

    "You don't lose your common sense when reading a court order. Microsoft should have read the court's preliminary injunction and complied in a way that made sense."