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Microsoft ambushed by DOJ

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Microsoft says that the Department of Justice's efforts threaten to convert the case into a "trial by ambush". The allegation was in the latest motion to be filed late yesterday by Microsoft in the Washington DC federal court. The DoJ's response filed on Monday was careful not to set out in detail the additional issues that have been found during the discovery process. Recognising that it may not prevail in its motion to have the case dismissed, for which there is an oral hearing on 11 September, Microsoft has hit the panic button as it increasingly became aware that it faced a subtle broadening of the case. Microsoft says that it should only have to answer the original charges made in May -- the tying of IE and Windows 98; the provisions in Microsoft contracts concerning the promotion and distribution of IE; and Microsoft's illegal contract provisions that prevent PC manufacturers from removing features or functionality from Windows 98. Microsoft says that the schedule for the trial was set on the basis of these being the charges. Microsoft list six new matters that it says have arisen: dealings with Apple concerning streaming audio and video; dealings with Intel concerning Intel's native signal processing, and Intel's development of applications written in Java; dealings with RealNetworks concerning streaming audio and video; allegations by Sun over pure Java; allegations by Caldera concerning DR-DOS; and anticipated allegations concerning Bristol Technologies claim for access to NT code. Although these additional matters have arisen during the process of discovery, and are legitimate issue to be brought up at the trial on 23 September, Microsoft claims that each matter requires detailed preparation, and that this would take another six months. It seems clear that Microsoft wishes to delay the start and escalate the complexity of the case. It is unlikely that Judge Jackson will agree to an extended period of preparation, having had to change the date one already. Informed observers forecast that Microsoft will win a delay in the court of appeals. It is known that the judges there follow the so-called Chicago school opposed to antitrust and support Microsoft. In the cases so far, they have brushed aside Congress-enacted law -- the Tunney Act, the Publicity in Taking Evidence Act, and the Sherman Antitrust Act - in favour of judge-made law.®

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