IT group files pro-Microsoft friend of court brief

By Clare Haney
IDG News Service, 02/01/00

Ahead of Microsoft's rebuttal of the U.S. government's antitrust lawsuit due Tuesday, an IT group has filed a friend of the court (amicus curiae) brief in support of the software giant. Nonprofit organization the Association for Competitive Technology (ACT), of which Microsoft is a member, claims to represent the interests of 9,000 IT companies.

ACT filed its 45-page brief to U.S. District Court Judge Thomas Penfield Jackson, the Washington organization says. Microsoft designated ACT as its "friend of the court" when Jackson asked for all sides in the case last year to choose an amicus. Members of ACT include Intel and Symantec.

Other friend of the court briefs are due to be issued on behalf of the Department of Justice and the 19 U.S. states who filed the lawsuit against Microsoft, as well as an amicus brief on behalf of Jackson. Jackson has already designated Harvard law professor Lawrence Lessig as his friend of the court, the identities of the other amici have yet to be revealed.

Last week, the U.S. government issued its rebuttal to Microsoft's proposed conclusions of law filed earlier this month in the ongoing antitrust case. Tuesday will be the software maker's turn to rebut the government's rebuttal.

This past November, Jackson issued his findings of fact in the case, ruling that Microsoft is a monopoly - a key issue in the Justice Department's case against the software giant. The antitrust trial filed against Microsoft by the Justice Department and 19 U.S. states kicked off in October of last year and centers around allegations that the company misused its monopoly in the desktop operating systems market to crush competition from vendors of rival Internet browsers to Microsoft's own Internet Explorer software.

In Monday's brief, somewhat surprisingly, ACT agreed with Jackson that Microsoft is a monopoly. The organization says that the software maker "holds a lawfully acquired monopoly" protected by "an applications barrier to entry."

However, ACT said that Microsoft's behavior did not violate antitrust laws as the U.S. government claims and disputes the Justice Department allegations that Microsoft forced rival browser maker Netscape (now owned by AOL) out of the market. "As an asset of by far the largest Internet access provider, AOL, [Netscape] Navigator remains a threat to dominate the browser market," ACT said in the brief.

Following tomorrow's rebuttal by Microsoft, the next stage of the ongoing case is the presentation of oral arguments from both sides concerning how they believe existing antitrust legislation should be applied to Jackson's findings of fact. The oral arguments are scheduled to be heard on Feb. 22.

ACT, based in Washington, D.C., can be reached at www.competitivetechnology.org/. The full text of the amicus brief filed by ACT can be read at www.competitivetechnology.org/pubs/Amicus%20Brief.PDF/. Microsoft can be reached at 425-882-8080 or at www.microsoft.com/. The Department of Justice can be reached at www.usdoj.gov/.