MS/DOJ: Microsoft files appeal

The appeal came hours after US District Judge Thomas Penfield Jackson agreed with the US Department of Justice's contention that Microsoft was dragging its feet intentionally.

Jackson refused to grant Microsoft's request to stay other remedies -- restrictions on the company's business practices that would go into effect in 90 days -- until it appealed the case.

The appeal echoed recent comments from Microsoft chairman Bill Gates and president and CEO Steve Ballmer that Jackson's ruling and remedy will be overturned on appeal.

"Microsoft's appeal will present an overwhelming case for reversal of the judgment based on an array of serious substantive and procedural errors that infected virtually every aspect of the proceedings below," company officials stated in Microsoft's filing. "These flaws culminated in the entry of unprecedented relief that extends far beyond the case that was presented, without affording Microsoft an evidentiary hearing on the terms of one of the most complex antitrust decrees in history."

In particular, Microsoft claimed that:

Jackson "simply ignored" evidence offered by Microsoft as to why it integrated Internet Explorer into Windows or why it gave the browser away free of charge; The judge made "clearly erroneous" findings, such as Jackson's determination that Microsoft had blocked Netscape Communications from channels of distribution; and Jackson ignored the assertion by Lawrence Lessig, a Harvard University professor who Jackson initially named as special master in the case, that Microsoft won the right to integrate Internet Explorer with Windows via an Appeals Court ruling in 1998.

"Having been told by Professor Lessig that Microsoft must prevail under this (federal appeals) court's test for technological tying, the district court simply refused to apply that test," Microsoft officials claimed.

The Department of Justice is expected to request that the case be sent directly to the US Supreme Court.

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Bob Trott

PC World
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