Microsoft Requests Time to Respond to Motion for Preliminary Injunction

(May 22, 1998)  Microsoft filed motions in U.S. District Court in Washington DC on Thursday asking Judge Jackson to allow Microsoft more time to respond to the government's massive motion for a preliminary injunction, and to consolidate the two suits filed by the Department of Justice, and by twenty state governments. The pleadings also include a first look at Microsoft's grounds for opposing the lawsuits.  A scheduling hearing is set for Friday at 11:00 am.

The Department of Justice and twenty states both filed substantially identical antitrust lawsuits against Microsoft in the same court on Monday.  The Department of Justice also asked for a preliminary injunction that would require Microsoft to develop and sell a browserless version of Windows 98, to allow computer manufacturers to modify Windows 98, and to carry Netscape's browser as a part of Windows 98.

Enlargement of Time

Microsoft's motion lists various reasons why Microsoft is entitled to more time to respond to the Motion for preliminary injunction.  The Department of Justice has been preparing this action since August of 1996.  The two memoranda total 114 pages, and reference the affidavits, declarations, and depositions of 29 persons, which together add up to thousands more pages.  Microsoft also points out that much of the discovery which it needs to conduct will come from competing companies which are hostile to Microsoft, and will likely seek to oppose and delay discovery.

Microsoft asks that it get copies of all of the affidavits, declarations, and depositions within 15 days, and that it be given 60 days for getting copies of other documents.  Microsoft asks that it then have 120 days to conduct oral depositions.   After that, Microsoft says that it should have 30 days to write a brief, and the government 14 days to respond.  Finally, Microsoft asks that the court hold an evidentiary hearing.

Microsoft's proposed Order states that discovery in in the preliminary injunction proceeding would close in 180 days, and that its opposition to the motion for preliminary injunction would be due in 210 days.  If granted, the court would not rule on the preliminary injunction motions until 1999.

Microsoft's Arguments on the Merits

Microsoft attorneys also used their Motion for Enlargement of Time to put before the judge some of their arguments on the underlying merits on the new antitrust suits.   These arguments are a brief first shot at informing and influencing Judge Jackson.

Microsoft's motion singles out for criticism three items from the government's long request for relief.  First, Microsoft attacks the notion of being compelled to offer a browserless version of Windows 98:

"The extraordinary relief requested by the DOJ and the States would require Microsoft, among other things, to develop a new operating system that would not include any "Internet Explorer" technologies. Such an operating system—which would take many months (if not years) to develop and test—would bear little, if any, resemblance to Windows 98 because Internet Explorer technologies are such a critical element of that product. And the new operating system built to the DOJ’s and States’ specifications would be of no commercial value: all other vendors of operating system software currently include Internet-related technologies in their products, reflecting clear consumer demand for such functionality."

Next, Microsoft criticizes the government's demand that Microsoft allow computer manufacturers to modify Windows 98:

"... the preliminary injunction requested by the DOJ and the States would require Microsoft to give computer manufacturers a license to "modify" Microsoft’s operating system products by substituting "non-Microsoft Internet browser software for Microsoft’s Internet browser software" or by replacing the Windows user interface, one of the principal features of the operating system. Even if the requested relief were feasible, and it is not, issuance of such relief would constitute an unprecedented confiscation of Microsoft’s intellectual property rights. Windows 98 is a single product that is covered by copyright as well as multiple patents and trade secret rights. Microsoft is perfectly entitled to license the operating system intact, just as an author can require that chapters not be deleted from his or her book. Microsoft is also entitled to brand prominently its products with its valuable Windows trademark on the user interface so that consumers will know that they are using an authentic and high quality operating system that Microsoft developed and stands behind."

Third, Microsoft argues that it should not be forced to carry Netscape's browser with Windows 98:

"... the DOJ and the States seek to require Microsoft by a preliminary injunction to incorporate into its Windows 98 operating system another company’s competing software product, namely, "the most current version of the Netscape browser." Such a mandatory carriage requirement is unprecedented outside the context of publicly regulated entities—which Microsoft is not—and would require Microsoft to make Windows 98 a distribution vehicle for a product that Netscape claims is used by more than 60% of consumers accessing the Internet."

Microsoft's Motion to Consolidate the Two Actions

Microsoft also filed a separate motion asking to have the two suits combined into one.   Microsoft's motion states that "the two actions are for all intents and circumstances identical and thus should be consolidated for purposes of discovery, motion practice and trial."

Microsoft also says that "Consolidation will achieve substantial efficiencies and savings without sacrificing fairness. Because both actions were filed on the same day, they are at the exact same point in the pretrial process. As a result, consolidation will not cause the trial of one action to be delayed while discovery is completed in the other action ..."