DOJ Files Opposition to Microsoft's Motion for Summary Judgment

(September 2, 1998)  The Department of Justice filed a massive brief late Monday in U.S. District Court in Washington which opposes Microsoft's motion for summary judgment, and expands the scope of the allegations against Microsoft.

The brief was filed under seal.  However, the Department of Justice made available to the public a heavily redacted version.  The document is 89 pages, not including caption, table of contents, and table of authorities.  Hundreds of passages have been removed from the public version.  This rendered some sections of the brief largely blank and incomprehensible, especially sections dealing with Microsoft's alleged exclusionary practices.

Microsoft filed its 88 page Motion for Summary Judgment on August 10 asking trial court judge Thomas Jackson to dismiss the case.   The DOJ's brief opposes summary judgment on every point raised by Microsoft.  The brief generally follows and reinforces the arguments contained in its original Complaint, which was filed on May 18.

The Court is scheduled to hear oral argument on the Motion on September 11.  Microsoft has yet to file its Reply Brief, which is due September 8.

The introduction to Plaintiff's brief reads more like a speech or press release than legal brief.  For example, it opens:

Microsoft’s motion for summary judgment misstates plaintiffs’ claims, the evidence concerning them, and the applicable law. When there is a claim that Microsoft does not want to deal with, it simply ignores it. When there is evidence contrary to Microsoft’s factual assertions, it ignores that too, even when it is contained in the same document or deposition on which Microsoft seeks to rely. When controlling precedent is at odds with Microsoft’s arguments, it either ignores the authority or treats it as having been overruled sub silentio by lower court rulings.  (Pages 1-2.)

The brief accuses Bill Gates of personally being at the center of antitrust violations.   It also accuses Microsoft personnel of evading discovery in their depositions.   It alleges:

"Microsoft’s approach in depositions and in its motion for summary judgment is to deny what its contemporaneous documents plainly say -- and to claim an astonishing lack of recall. Executives who are stated to be the author of documents claim not to remember writing them. Executives who are the stated recipients of documents claim not to remember receiving them. And both authors and recipients claim not to know what the documents mean."  (Page 11.)

The June 23 Opinion of the Court of Appeals substantially undermined the DOJ's allegation in the Complaint's Second Claim for Relief alleging unlawful tying in violation of Section I of the Sherman Act.  It held that Windows 95 and Internet Explorer are integrated.  Yet, the DOJ brief persists in arguing the tying claim.

Section II. C. of the brief devotes almost thirty pages to arguing that Microsoft's requirement that OEMs distribute Internet Explorer as a condition of licensing Windows is an unlawful tying arrangement.

As it has done in the past, the DOJ argues at length in its Opposition brief that Microsoft's exclusionary agreements with ISPs, ICPs and OEMs are unlawful.  (See Section II. B. of Opposition.) 

The DOJ argues that Microsoft "Entered into agreements with PC manufacturers and Internet Service Providers that effectively foreclosed Netscape from the most important channels of distribution and substantially increased Netscape’s costs; [and] Entered into agreements with ISPs, ICPs, and others to eliminate or reduce those firms’ promotion and/or distribution of Netscape’s browser"  (Page 6.)

The Department of Justice has been conducting extensive documentary and deposition discovery this summer, both from Microsoft, and other computer and Internet industry companies.  The DOJ's brief references new allegations based on its findings.

The brief discusses an alleged Microsoft attempt to divide the browser market with Netscape.  It also references attempts to stop Intel, Apple, and Real Networks from competing with certain products or technologies.  The brief alleges:

Microsoft’s proposal to Netscape to divide the market and restrict or eliminate competition is part of a pattern that includes similar discussions with Intel (concerning Intel not continuing software development), Apple (concerning Apple agreeing to stop marketing QuickTime for use with Windows), and a small company called Real Networks (concerning a Real Networks assurance that it would get out of the base streaming media platform business and not share its technology with Microsoft’s competitors). Microsoft’s response to Netscape’s rejection of its proposed market division is part of a pattern that includes Microsoft’s response to Apple when Apple refused to withdraw its "QuickTime" software from competition with Microsoft’s "NetShow" software. [redacted material]  SJ Ex. 60, p.0104683, is part of a pattern of using its control over the monopoly operating system to make competing products operate, or appear to operate, less effectively, a pattern that began at least as early as the Microsoft code designed to disrupt the use of DR-DOS. And Microsoft’s tying of its browser to Windows is part of a pattern of tying applications to the operating system -- a pattern that will have no limit if Microsoft prevails in its view that it is free to combine any product it wishes with the operating system.  (Page 8.)