Microsoft fires away at Jackson in antitrust appeal

In its long-awaited appeal of a breakup order issued last spring, Microsoft Corp. today mounted an extensive legal attack on the antitrust trial run by U.S. District Court Judge Thomas Penfield Jackson, claiming that the proceedings were "highly unusual and prejudicial."

In a 150-page brief filed with the U.S. Court of Appeals in Washington, Microsoft faulted virtually every aspect of Jackson's June ruling that the company had engaged in anticompetitive business practices and should be split into two separate entities - one for the software vendor's operating systems, the other for the rest of its products.

But those kinds of complaints were widely expected. What may be the most interesting aspect of Microsoft's brief was the inclusion of passages criticizing Jackson's behavior since the trial ended, with the company asserting that the judge's public comments have demonstrated antagonism toward the company and violated judicial codes of conduct.

Since releasing his ruling, Jackson has made numerous public speaking engagements in addition to giving some interviews. Microsoft cited those public comments while its appeal was pending as a breach of the ethical codes for judges and asserted that they "are emblematic of the manner in which [Jackson] conducted the entire case - employing improper procedures and changing the rules of the game, always to Microsoft's detriment."

Jackson stayed the execution of his order pending the company's appeal, which was handed to the Court of Appeals after the U.S. Supreme Court rejected a request from the U.S. Department of Justice (DOJ) that it directly take on the case.

But since the trial ended, Jackson has been outspoken about the case, defending his decision to order a breakup of Microsoft while also conceding that his rulings may be "vulnerable on appeal." At a symposium in Washington last month, for example, Jackson said he had no choice but to impose the breakup remedy sought by the government after settlement talks between Microsoft and the DOJ failed (see story).

In its appeal, Microsoft claimed that Jackson also "reportedly analogized Microsoft's executives to 'drug traffickers' caught on telephone wiretaps" in an interview about the antitrust trial. Such comments raise questions about the judge's impartiality during the trial itself, the company claimed.

"Judge Jackson's behavior gives Microsoft powerful ammunition that the breakup order is based on personal feeling rather than legal precedent," said Hillard Sterling, an antitrust attorney at Gordon & Glickson PC in Chicago.

The DOJ, along with the state governments that joined the agency in the case against Microsoft, is scheduled to present its brief responding to Microsoft's filing to the appeals court by Jan. 12. DOJ spokeswoman Gina Talamona today said Jackson's judgment "is well supported by the evidence offered during a 78-day trial, including thousands of pages of Microsoft's own documents." She added that DOJ officials remain "confident" that the ruling will be upheld by the Court of Appeals.

Microsoft, in its brief, said the proceedings "went badly awry from the outset" when Jackson broadened the case "beyond recognition" over what began as an attack on the company's addition of Internet technologies to Windows.

The brief also restates many of the legal arguments raised by Microsoft during the trial. For instance, the company repeats its assertion that the combination of Windows and Internet Explorer was not illegal tying - the linking of two separate products for the purpose of subverting competition.

The company's brief to the appeals court also renews arguments that it doesn't have monopoly power in operating systems and that Jackson's decision excluded the most serious competitive threats faced by Windows, such as Java and the increasing array of Window's substitutes, such as television set-top boxes and game consoles.

"Microsoft did not engage in anticompetitive conduct," the company wrote in its appeal. "To the contrary, Microsoft's conduct -- improving its platform and broadly distributing those improvements -- was procompetitive. It also made perfect business sense."

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