Microsoft and Amici File Briefs with Court of Appeals

(November 28, 2000) Microsoft, and two technology trade groups, filed their briefs with the Court of Appeals urging reversal of District Court Judge Jackson's Final Judgment and Order.

The Microsoft Corporation filed its principal appeal brief with the U.S. Court of Appeals for the District of Columbia Circuit on Monday, November 27. Two technology trade groups that oppose Judge Jackson's action, the Association for Competitive Technology (ACT) and the Computing Technology Industry Association (CompTIA), filed their joint amicus curiae brief.

They seek reversal of U.S. District Court Judge Thomas Jackson's Final Judgment of June 7, 2000, and Order of April 3, 2000. Judge Jackson held that Microsoft violated Section 1 of the Sherman Act by tying its Internet Explorer to its Windows operating system. He also held that Microsoft possesses monopoly power in a market for Intel-compatible PC operating systems, and that Microsoft maintained that monopoly by anticompetitive means in violation of Section 2 of the Sherman Act. He further held that Microsoft attempted to monopolize the browser market in violation of Section 2 of the Sherman Act. He then imposed a range of remedies, including splitting Microsoft.

Microsoft requested in its brief that the Court of Appeals reverse the Judgment of Judge Jackson, direct judgment for Microsoft, and remand any further proceeding to a new District Court Judge.

Microsoft's brief raises six appeal issues:

1. Whether Microsoft’s design of its Windows operating systems to include Web browsing software constituted a tie in violation of Section 1 of the Sherman Act and corresponding state-law provisions.

2. Whether Microsoft maintained a monopoly in the alleged market for "Intel-compatible PC operating systems" through anticompetitive conduct—principally its design of Windows and its promotion and distribution agreements with Internet access providers—in violation of Section 2 of the Sherman Act and corresponding state-law provisions.

3. Whether Microsoft attempted to monopolize the alleged market for "Web browsers" through anticompetitive conduct in violation of Section 2 of the Sherman Act and corresponding state-law provisions.

4. Whether the extreme and unwarranted relief entered by the district court without conducting an evidentiary hearing and without permitting Microsoft to develop and present evidence must be reversed.

5. Whether the district court’s handling of the case (e.g., its failure to provide Microsoft with adequate time for discovery and to prepare for trial, its limitation on the number of witnesses, its use of "summary witnesses" and the resulting admission of large amounts of inadmissible hearsay) requires that the judgment be vacated.

6. Whether the district judge’s public statements about the merits of the case require that the judgment be vacated and the district judge disqualified from any further proceedings.

The two main amici in the Microsoft camp, ACT and CompTIA, argued that Judge Jackson's decision would harm the technology industry. "The extraordinarily dynamic IT industry of the last fifteen years has generated enormous benefits for businesses and consumers. The decision below threatens to choke this dynamism by fragmenting the Windows operating system standard, which now supports a steadily increasing range of software applications, and by reducing the incentive and ability of leading software firms to compete vigorously by adding new functions to existing products."

This amicus brief was prepared by a legal team that included Griffin Bell (President Jimmy Carter's Attorney General), Lloyd Cutler (former counsel to Presidents Carter and Clinton), and Boyden Gray (counsel to President Bush).

They further argued that "the District Court’s decision, by misapplying the antitrust laws, would impose on the IT industry a set of rules that would chill both competition and innovation in ways that, over time, will dramatically reduce consumer welfare. The District Court’s judgment should, therefore, be reversed."