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MS shoots off last volley, now it's back to the judge

Even Microsoft's lawyers reckon it's time to knock this on the head...

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MS on Trial In a surprise move, Microsoft has filed its response to the response to the response a day early. And the company's Reply to plaintiffs' response to Microsoft's comments on their revised proposed final judgment is for once a short one.

Microsoft's legal team may well be tired and limited to repeating its arguments, in the absence of any concessions from Microsoft, but it has not run out of sarcasm and still has a supply of venom. It's crystal clear, to use Microsoft's frequent metaphor, that this brief is not really directed at Judge Jackson at all, but at an appellate court.

Where the DoJ does not accede to Microsoft's desires to reduce the "undue hardship" that it would suffer, the brief claims there are "flaws" in the arguments. Where the DoJ "declines to "minimize the damage... on a wide range of participants in the computer industry", Microsoft says there are "defects". And so far as the changes to which the DoJ agreed are concerned, these are only "cosmetic", Microsoft says.

Microsoft has been pretty consistent in its failure to drop its guard and admit to any wrong doing, even when faced with the most damning documentary evidence or witness admissions. It's the same when it criticises proposed remedies: "severe economic dislocation" would result from its "dismemberment". Strangely, Microsoft wanted the breakup to be referred to as "divestiture" only a few days earlier, but let it be dismemberment if it wishes.

Microsoft is not at all keen on "a wholesale transfer of proprietary information about its operating systems to competitors on a royalty-free basis", nor does it warm to the idea of regulation as to how "Microsoft designs its operating systems, controlling what new features Microsoft can add to its operating systems to meet customer demand and respond to competition, and enabling computer manufacturers to fragment Windows, impairing its utility as a development platform". It's also quite unclear why Microsoft should think that treating "all Covered OEMs, ISVs and IHVs exactly the same way" would be unjust.

On the whole, Microsoft claims, the DoJ has toughened up its proposed judgement with "extreme readings of various provisions". The brief then goes on to make a series of claims that have been dealt with in the Court's findings of fact. But it's just too late to start again with a claim that Windows and middleware are "all elements of a single product", or to moan about having to give competitors some access to source code.

At times Microsoft's invective suggests that it will do self-destructive things, and stir up user sentiment in order to get revenge on "the government". It is bizarre that Microsoft claims that "it simply cannot" separate IE from Windows in nine months. Equally silly is Microsoft's claim that it would be restricted from distributing Windows' bug fixes ("improvements"), and that this would "slow the pace of innovation and harm consumers".

It was also silly, and dangerous for Microsoft's defence, when it claims that "The government has yet again failed to define the .Internet browser' that the Court found was illegally tied to Windows". By Microsoft's own admission, the Court and everybody else understands "Internet browser", and this category of software won't disappear because of what Microsoft did with IE.

Microsoft manages to demolish its case further on in the same paragraph: "Given the importance of providing Internet support in a modern operating system...". Let's consider this canard in another way. If you wish to sort some data, you would usually do this by using a pre-written sort program. Whether the program is included with an operating system, or is in a database package, or exists as a stand-alone routine does not matter at all, so long as it works when and where it is needed. It's the same with Internet browsers, and Microsoft's actions and claims are having an adverse effect on its case.

At the end of the brief, there is the proverbial chance to roll on the floor laughing. Microsoft is discussing what it claims to be the problem of its employees being "unable to certify that they understand the revised proposed final judgment... [so] faced with the prospect of certifying that they understand something they do not, many Microsoft employees might choose to resign instead." They will, they will - but not for this reason. ®

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