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Microsoft to roll out defence today

With another motion for dismissal, Graham reckons...

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When Microsoft opens its defence later today, John Warden will almost certainly start with an artillery bombardment by introducing a Motion for dismissal. And unless there is an unexpected eclipse of the Sun, Judge Jackson will deny it. There will then be the usual communique from Microsoft, after which the sniping will resume. This is not the first time that Microsoft has asked the court to let it off the hook. Judge Jackson denied a Motion for summary judgement in September, before the trial started, in a 16-page decision that concluded that there were "many material issues of fact genuinely in dispute". It was in this decision that the judge said that Microsoft did not have to distribute Netscape's browser along with Windows, which was a pretty potty request by the DoJ anyway. Microsoft also presented a silly argument -- that Windows could not be subject to US state antitrust law because Microsoft had a federal trademark. The judge threw that one out too, saying that "copyright does not give its holder immunity from the laws of general applicability, including the antitrust laws". As an amusing aside, the last time we checked Microsoft's UK copyright application for Windows -- a few weeks ago -- it hadn't been granted. The next development in this game of legal snakes and ladders was when Microsoft held a press conference in Washington in December and handed out a document it entitled A case of trial in error, which sounded more like a libretto from Gilbert & Sullivan than what it set out to be. Microsoft falls back all the time on its 23 June 'win' in the Court of Appeals to back its case for not having done anything wrong, but this misrepresents what the appellate court actually said in its 2-1 decision. Microsoft was allowed to integrate IE in Windows if "there is a plausible claim that it brings some advantage". Judge Jackson noted that the appellate court also said that its view of the Windows integration was "tentative". So far, the DoJ has established quite well that there are no discernable advantages of integration, and Judge Jackson was evidently impressed with evidence from Avie Tevanian of Apple, who was asked directly by the judge if, from a technological perspective as opposed to a marketing one, there was any benefit to integration of the browser. Tevanian responded: "We determined that it caused confusion for some users in some cases. We determined it caused an extra overhead when it wasn't necessary. And there were often simpler ways to accomplish things." Judge Jackson then repeated back to Tevanian: "You do not think it was a benefit to the ultimate user?" Tevanian replied: "That's right." ® Complete Register trial coverage

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