Microsoft Asks for Do-Over

Jul 18 2001

WASHINGTON — Microsoft asked a federal appeals court Wednesday to reconsider a key part of its unanimous June 28 ruling in the government's landmark antitrust case against the software giant.

The company's lawyers filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit asking the court to rehear one aspect of its ruling — that Microsoft illegally commingled Internet Explorer Web browsing software code into Windows to maintain its monopoly market share in Intel-compatible PC operating systems.

Microsoft also attacked the factual underpinnings of the ruling, including trial testimony from government witnesses and a district judge's interpretation of a Microsoft document admitted under seal. That document said some functions in a key software library file were "IE only." But Microsoft said the thrust of the document in question was that the library file was constructed to "achieve the efficient use of shared functions" in Windows.

"Microsoft did not 'commingle' software code specific to Web browsing with software code used for other purposes in the same files in Windows 98," said the company's petition. "Rather, in organizing software code into files, Microsoft placed related functions close to one another."

The appeals court ruling vacated U.S. District Judge Thomas Penfield Jackson's order breaking up Microsoft and ordered a new proceeding on a legal remedy before a new district judge.

The aspect of the appellate court ruling challenged by Microsoft — one of a host of antitrust law violations affirmed by the appeals court — could come back to haunt the company as it readies for the upcoming debut of its new Windows XP operating system.

Microsoft's critics said that the company's plans to integrate its instant messaging and media player software into Windows XP are proof that the company is repeating its anti-competitive practices in a naked attempt to extend its monopoly to the Internet. The state attorneys general battling Microsoft have already signaled that Windows XP will be fair game in a new courtroom proceeding on a legal remedy.

Besides Wednesday's petition, Microsoft announced last week that it will allow computer makers to modify the Windows XP desktop and to remove end-user access to Microsoft's Internet Explorer Web browser.

"It looks to me like they're beginning to realize how much they've got at stake in the rollout of Windows XP," said Bert Foer, president of the American Antitrust Institute. "They are urgently trying to clear the underbrush."

The Department of Justice said Microsoft's filing trod on well-traveled ground. "The issue that Microsoft is raising in its filing was litigated at the district court and court of appeals, both courts ruling in favor of the department," said DOJ spokeswoman Gina Talamona. "To the extent this relates to remedy, as Microsoft itself said in its filing, the department's position is that we should move to a remedy phase in the district court as quickly as possible."

On July 13, government lawyers asked the appeals court to send the case back to the district court immediately, rather than waiting the customary 45 days.

A spokesman for Iowa Attorney General Tom Miller, a leader of the states' camp, said, "We will respond in a court filing, if necessary."

The appeals court is unlikely to grant Microsoft's latest request, because the court's June 28 ruling was a unanimous opinion by all eligible active judges. In the ruling, the appeals court wrote: "In view of the contradictory testimony in the record ... we cannot conclude that the finding was clearly erroneous."

Microsoft hasn't said whether it will petition the Supreme Court to review the entire appeals court ruling.