Sun, Sep 02, 2001 page11

• Microsoft appeal effort opposed

  ANTITRUST A high-court decision to hear the appeal probably would mean a long delay of proceedings before the top software company would finally be penalized

  • BLOOMBERG
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  The US Justice Department urged the Supreme Court to reject Microsoft Corp's appeal of its antitrust case, saying high-court intervention would delay resolution of the dispute and potentially roil the software industry.

  Microsoft is challenging a ruling that the company illegally protected its Windows operating system monopoly, contending US.

  District Judge Thomas Penfield Jackson's comments to reporters infected the entire case. An appeals court removed Jackson from the case, while leaving intact the bulk of his findings.

  A high court decision to hear the appeal probably would mean, at a minimum, a months-long delay of proceedings before a new trial judge on how to penalize the world's largest software maker. The justices are likely to decide whether to get involved by early October, just before the planned introduction of Microsoft's new Windows XP system.

  Jackson's disqualification was "a stern response to the trial judge's conduct," the Justice Department said in a 26-page filing. "A retrial could cost additional millions of taxpayer dollars, consume judicial resources for months, inject renewed uncertainty into the market and delay still further imposition of a remedy." Justice Department antitrust chief Charles James and 18 states are considering whether to seek changes in XP. Microsoft's critics say the company is bundling a host of new programs into Windows, ranging from a media player to instant messaging, as a way of bolstering the operating system.

  The unanimous appeals court decision overturned Jackson's order that the company be split in two. The court, however, upheld most of Jackson's conclusions that Microsoft acted illegally to thwart competition to Windows, which powers 95 percent of the world's personal computers.

  Microsoft spokesman Jim Desler said the company's appeal raises an issue that "goes to the very heart of judiciary integrity and is fundamental to the public's confidence in the trial process."

  The company contends the US Court of Appeals for the DC Circuit misinterpreted Supreme Court precedent governing judicial misconduct.

  The filing comes a day after the European Commission expanded its own antitrust probe of the Redmond, Washington, company.

  Jackson concluded Microsoft used a variety of illegal means to squash a rival Internet browser that might have emerged as a threat to the Windows monopoly. The appeals court largely agreed, citing Microsoft's exclusive contracts, threats of retaliation and bundling of its own Web-browsing software into Windows.

  Jackson drew criticism for interviews he gave both during the trial and after he ruled. Author Ken Auletta said he interviewed Jackson, on tape, for more than 10 hours and was allowed to see notes the judge took during the 78-day trial.

  The judge was quoted in Auletta's book as comparing Microsoft's attitude in court to members of a drug gang.

  In its latest court filing, the Justice Department said that misconduct didn't produce any "risk of injustice" in the case.

  "There is no reason to suspect that he findings of fact were tainted," the government said. "The court's findings were fair and thorough."
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