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Microsoft files response to government rebuttal

Microsoft files additional briefs in the antitrust trial case that cast the software maker's behavior in strikingly different lights.

Additional briefs filed today in the Microsoft antitrust trial case cast the software maker's behavior in strikingly different lights.

Microsoft filed a brief that amounts to a rebuttal to the government's rebuttal brief submitted last week, arguing that the document lacked substance. Also today, onetime Supreme Court nominee Robert Bork filed a "friend of the court" brief on behalf of 19 states, along with the Justice Department (DOJ), which alleges Microsoft violated antitrust law. Harvard Law professor Lawrence Lessig filed another brief at the request of presiding U.S. District Judge Thomas Penfield Jackson. Microsoft's day in court

Two trade groups, the Software and Information Industry Association (SIIA) and Association for Competitive Technology (ACT), had each earlier filed "friend of the court" briefs. SIIA submitted its brief on behalf of the Justice Department and ACT submitted one for Microsoft.

Only Microsoft's response to the government's rebuttal brief was mandatory today. The others, which are not binding on the parties involved, serve to illuminate or advise on points of law.

Microsoft's brief started with quick jabs against the government's Jan. 25 rebuttal. "Plaintiffs' reply is noteworthy for the lack of substance underlying their strident assertions," wrote Microsoft's attorneys. The brief chastised the government for saying Microsoft took Jackson's findings of fact out of context, "yet they provide no specifics to back up that sweeping assertion."

Microsoft continued its attack of harsh rhetoric. "By lambasting Microsoft, plaintiffs apparently hope to draw attention away from the flaws in their case...This court should decline plaintiffs' invitation to rewrite the antitrust laws to protect Microsoft's competitors at the expense of consumers," the brief continued.

The Redmond, Wash.-based software maker stood by its position that Internet Explorer and Windows 9x are a single product and not two as the government contends. Microsoft once again used an appeals court ruling to support this idea.

In a separate document, Microsoft addressed state-law claims that are similar to but different than federal antitrust statutes. The software maker largely used copyright law to negate the separate state claims.

The brief submitted by Lessig addressed the technological tying of a browser to the operating system.

"There is reason to believe the law in this area is unsettled," Lessig wrote. The law professor said courts have not aggressively dealt with the tying issue. "The hesitation comes from a reluctance by the courts to investigate the intricacies of software design," Lessig continued.

Lessig set out to address an appeals court ruling that legal experts say makes proving the tying allegation a tough claim.

If the ruling by the U.S. Court of Appeals for the District of Columbia applies to this case "then it is in my view that, given the findings of this Court, the government has not made out a claim of tying under Section 1 of the Sherman Act," Lessig wrote.

In the 45-page document Lessig argued, among other things, that a previous Supreme Court case, Jefferson Parish, could be interpreted as taking precedence over the lower court ruling. That case, which establishes a different standard for tying, would support the antitrust violation, Lessig wrote.

Microsoft, not surprisingly, dismissed the significance of Lessig's brief. Microsoft spokesperson Mark Murray faulted part of Lessig's argument as "introducing a change in a way that people traditionally interpret the law and in essence is rewriting the law." His other argument ignores "the D.C. Circuit's ruling, which is the law in this case," Murray said. "Court of appeals rulings are not optional."

The government took a more supportive view.

"We agree with professor Lessig that under the proper reading of the law Microsoft engaged in illegal tying in violation of Section 1 of the Sherman Act," said Justice Department spokesperson Gina Talamona. "His brief provides insightful analysis of the precedents and offers useful guidance on how tying law should be applied to the software industry."

Robert Bork, who filed his brief on behalf of the states, attacked Microsoft on three fronts. He argued Jackson's findings of fact clearly show Microsoft illegally maintained a monopoly, that its actions violated antitrust law and harmed consumers and that the appeals court ruling on tying does not shelter Microsoft's illegal conduct.

"Microsoft's conduct in this case has harmed consumers and will continue to harm them unless that conduct is stopped by this court," Bork concluded.

Like Lessig, Bork relied on the 1984 Supreme Court case, in part, to dismiss the significance of the D.C. Circuit Court ruling on tying.