DOJ vs. Microsoft: We're getting down to the end

Each of the two sides in the Microsoft antitrust case filed blistering rebuttals to the other side's version of the facts in the latest round in the courtroom drama. Each accused the other of distorting the facts in this landmark case. The rebuttals were a prelude to the pending final courtroom confrontation when closing arguments are heard later this month.

What was filed on Friday were rebuttals to the voluminous findings of fact filed on 10 August. These finding outlined each side's version of key factual pieces of evidence.

Microsoft said the US government's findings "are rife with internal inconsistencies" and include "stunning concessions" that undermine the government's claims that the company is a monopoly engaged in anticompetitive practices.

The US government, in turn, said Microsoft has "ignored most of the evidence against it" in its argument to the judge and has "mischaracterised much of the evidence that is not ignored".

Judge Thomas Penfield Jackson will use these briefs to issue his own findings, as early as October. That opinion will be separate from a verdict but is expected to clearly signal the judge's inclination in this case.

Microsoft also uses the rebuttal to introduce new evidence into the case, in its continuing effort to show that Windows is under attack and that it's far from a controlling monopoly.

For instance, Microsoft asks the court to "take judicial notice" of Dell Computer's August 9 announcement that it was offering the Linux operating system as an option on two of its desktop and notebook lines.

Moreover, Microsoft also pointed to Linux maker Red Hat's initial public offering last month, citing a August 12 New York Times story that characterised the IPO as "spectacular debut."

"The marketplace is Microsoft's greatest ally, given the ease of entry and distribution," said Hillard Sterling, an attorney at Gordon & Glickson in Chicago. But these latest developments aren't "the same blockbuster event" that the merger of Netscape Communications and America Online was, Sterling said.

The two sides will meet again September 21 for closing arguments. This could be an important event if Judge Jackson starts grilling the attorneys on both sides, testing their legal arguments.

"That day is only interesting if Jackson comes armed with his list of tough questions for each side and essentially controls the discourse," said William Kovacic, a law professor at George Washington University in Washington.

In its rebuttal, Microsoft, for instance, argues that the government's assertion that it's a monopoly is "utterly at odds" with belief that middleware is a potential threat to Windows. Middleware, extensions or complements to Windows, could serve as platforms for independent software developers, it argues.

The government, for its part, says that Microsoft advances "the remarkable argument" that "because Microsoft felt it necessary to act to crush potential competitive threats, this means that Microsoft could not be a monopolist since a monopolist would not face competitive threats in the first place".

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