AOL to join others in filing Microsoft trial brief

But AOL will not get to file the separate "friend of court" brief it had sought, nor will three trade groups opposing Microsoft.

The U.S. Court of Appeals for the District of Columbia Circuit ordered AOL, the Computer & Communications Industry Association (CCIA), the Project to Promote Competition & Innovation in the Digital Age (ProComp), and the Software and Information Industry Association (SIIA) to file a joint brief of no more than 25 pages.

Microsoft had opposed the separate filings, which would be made on behalf of the government.

"We're pleased (the court backed) our ultimate position--that if the Court of Appeals was going to allow CCIA, SIIA, ProComp and AOL to file, they should file together," Microsoft spokesman Vivek Varma said.

The court also ordered that groups supporting Microsoft--the Association of Competitive Technology (ACT) and the Computing Technology Industry Association (CompTIA)--also file a joint brief of 25 pages.

The ACT and CompTIA brief is to be submitted Nov. 27, the same day Microsoft is scheduled to deliver its primary brief of the appeal. The brief on the government's behalf is due Jan. 12.

Besides the major protagonists weighing in for either Microsoft or the Justice Department and 19 states, two other groups and three individuals were given leave to file briefs.

The court ordered The Association for Objective Law (TAFOL) and the Center for the Moral Defense of Capitalism (CDMC) to file a joint brief of no more than 25 pages on Nov. 27.

The individuals--Lee A. Hollar Carl Lundgren and Laura Bennett Peterson--may also file briefs up to 25 pages, due Jan. 12. The government is scheduled to file its major brief of the appeal on the same day.

In accepting the briefs--even though some were consolidated--the appeals court welcomed outside input, said Emmett Stanton, an antitrust lawyer with Fenwick & West in Palo Alto, Calif.

"They're obviously willing to hear as many different perspectives that make sense, recognizing they don't really have expertise in the technology itself," he said.

The government did not oppose any of the requests to file friend-of-court briefs, but Microsoft in an Oct. 30 brief attacked virtually every request.

"Every individual would like to have his own brief rather than coordinating with anybody else," Stanton said. "But I don't think it's overreaching on anybody's part to ask to file separately."

"The ruling by the Court of Appeals means that Microsoft has failed in its effort to silence the views of its critics in this case," ProComp president Mike Pettit said in a statement. "Microsoft tried to prevent opponents from filing any friend-of-the-court briefs in this important case," and the appeals court recognized the briefs would offer a "unique and valuable perspective in this case."

Microsoft conceded to ACT and CompTIA filing a joint brief but attacked the other trade groups' requests, as well as AOL's. The company argued that its "competitors--acting in their own names or under the guise of various 'trade associations'--should not be allowed to file" multiple 25-page briefs.

Microsoft had objected to a brief from Hollar, a professor of computer science at the University of Utah, because he has "made somewhat of a career testifying against Microsoft." Hollar testified against Microsoft in two other cases and consulted for the Justice Department on Microsoft in 1995.

Redmond, Wash.-based Microsoft opposed the TAFOL and CMDC filing requests less stridently, although "these two organizations apparently support Microsoft's effort to overturn the judgment."

The Court of Appeals is hearing Microsoft's appeal. At issue is U.S. District Judge Thomas Penfield Jackson's order that Microsoft be broken into separate operating systems and software applications companies. Earlier, he ruled that Microsoft violated two sections of U.S. antitrust law.