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DoJ rebuts MS filing, pulls Gates up on email deletion

Reads like it was prepared by somebody who'd been burned once. Funny

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MS on Trial Last week Judge Jackson called for one final encore of filings - at the Department of Justice's request - before he delivered his final verdict. The DoJ's filing is now in, and Microsoft's response is due on Wednesday, but although the DoJ ostensibly wanted to deal with legitimate issues raised by Microsoft, its filing is shot through with the kind of wording you'd expect from an outfit that's been burned once already.

At the start it accepts various changes suggested by Microsoft, but they're not what you'd call major amendments. For example, get a load of this: "Plaintiffs do not object to clarifying this definition accordingly, i.e., by changing 'personal computer' to 'Personal Computer.'" A major concession, right?

Having got this out of the way, the rejections scroll on for page after page. They're dealt with point by point, but the bottom line is that "Microsoft's other proposals consist largely of changes that would create loopholes and permit Microsoft to continue to engage in anticompetitive practices like those found by the Court or otherwise to frustrate or undermine the purposes of the Final Judgment."

Rewind to the consent decree, and to the critical clause covering integration; at the last minute then, Microsoft contrived to insert a wording that (in the opinion of The Register and the court of appeals at least) gave Microsoft carte blanche to bolt anything it liked onto the operating system, and still call it an operating system. The DoJ's filing today speaks volumes about its determination not to get fooled again - every last wriggle from Microsoft is dealt with, prefaced by wording along the lines of: "This proposed change is unnecessary."

The detailed rejection of every last possible bolthole and wriggle suggests that maybe the judge's decision to call for one last round of filings wasn't positive for Microsoft after all. Today's filing repeatedly points to how Microsoft's proposals would allow the company to continue to terrorise PC companies, screw it competitors and do pretty much what it wants to do.

A couple of (relatively) new grenades have been lobbed in though. We rather liked: "The date (April 27, 2000) on which the determination is made as to the assignment of Intellectual Property is not arbitrary (it is the day before Plaintiffs' Proposed Final Judgment was filed), and Microsoft's proposal would allow the company to shift assets before the Plan of divestiture is implemented to frustrate the effectiveness of the Final Judgment." (our italics) Good heavens, do you think a reputable company like Microsoft would pull a stunt like that?

And then there's the waspish suggestion that Microsoft execs might (once bitten) start systematically deleting email: "In his deposition, Gates testified that 'most people here delete most of the e-mail they receive every day,' 'I don't keep most e-mail I receive,' 'I delete 98 percent of my e-mails,' and 'Q. You never preserve messages that you send? A. I don't preserve them. There is the extremely rare case, which I've done almost never, where you copy yourself on the e-mail.' See Attachment 1, Gates dep. 9/2/98 at 589:21 - 590:20. See also Attachment 2, Engstrom, 2/23/99pm, at 18:12-19:9 (on 'a routine basis, I delete all mail . . . two months old.').

You might, from the eye-level of a normal (relatively) person, reckon that having to keep all of your email is excessively burdensome, but get real - do you think any spam gets through to Bill Gates? It's significant that a company of Microsoft's size and heft is still attempting to establish a justification for erasing company records, but the justification is spurious. ®

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