Feeds

Appellate court will hear MS whinge

'The trial sucked, and we're about innovation...'

  • alert
  • submit to reddit

The Power of One Brief: Top reasons to choose HP BladeSystem

MS on Trial Tuesday was an incredibly busy day in Washington for Microsoft and the US Department of Justice (DoJ). First, US District Judge Thomas Penfield Jackson accommodated the DoJ, as expected, by withholding judgment on a stay of his remedies which had been requested by Microsoft, until after the company filed its long-promised notice of appeal.

This, of course, surprised no one, as the DoJ, which favours suing the appeal directly before the US Supreme Court, could not file its motion to expedite until Microsoft filed its notice of appeal, a situation which clearly worked to the company's advantage. Jackson favours the expedited appeal too; and has shown some evidence lately of taking personal pleasure in pissing off the Redmond brass.

So on Tuesday it came down. "Consideration of a stay pending appeal is premature in that no notice of appeal has yet been filed," Jackson wrote in a terse statement, as if anyone needed to be told.

Microsoft has been playing for time against further action, while simultaneously mounting a colossal PR campaign appealing to pity over its shocking deprivation of due process. Judge Jackson's decision, which keeps the clock running on his 90-day buffer before remedies commence, was clearly meant to force Microsoft to put up or shut up.

And put up it did. Microsoft filed not only notice, but a full brief, with the US Court of Appeals Tuesday afternoon, citing "an array of serious substantive and procedural errors that infected virtually every aspect of the proceedings" in Judge Jackson's courtroom.

Almost immediately after receiving the brief, the full appellate court agreed to hear the case "in view of its exceptional importance."

In normal circumstances, an appeal would be heard by a three-judge panel, then move up to the full court. Thus the appellate court is exhibiting its eagerness to 'expedite' the case in its own way, most likely to keep the Supreme Court at bay so it gets the chance to put its own mark on one of the most popular trials in recent history.

The court's first order of business will be ruling on Microsoft's request for a stay delaying the implementation of Judge Jackson's unthinkable remedies.

Meanwhile, the DoJ, having finally got what it needs, filed its motion Tuesday evening under the Expediting Act to bring the case directly to the Supreme Court. Judge Jackson must first certify the request, and few imagine he will decline.

By filing its notice of appeal, Microsoft left the door open for the DoJ to apply directly to the Supreme Court, which can upstage the appellate court if it so chooses. Whether it will do so is another question. The Court has shown considerable reluctance to interrupt the normal flow of judicial process, an observation upon which Microsoft is no doubt banking.

The DoJ has cried foul. Microsoft's filing with the appellate court was "an ill-conceived attempt to end-run the Expediting Act," the DoJ whinged on Tuesday evening, perhaps forgetting that their own plans were contingent on MS taking the plunge and filing.

But when it comes to whingeing, MS earns the laurel wreath. "Microsoft's stay motion has been pending for nearly a week, and the district court has failed to afford the relief requested," the company's brief alleged.

Of course MS relied, for extra time to buff its appeals brief and pursue its PR onslaught, upon the fact that Judge Jackson wouldn't grant a stay until or unless the company filed it -- a nice example of MS crying over something they used to their own advantage.

We expect to see a good deal more of the same as the appeals process commences, and fervently hope the courtroom will be stocked with an adequate supply of tissues. ®

The Essential Guide to IT Transformation

More from The Register

next story
KDE releases ice-cream coloured Plasma 5 just in time for summer
Melty but refreshing - popular rival to Mint's Cinnamon's still a work in progress
NO MORE ALL CAPS and other pleasures of Visual Studio 14
Unpicking a packed preview that breaks down ASP.NET
Secure microkernel that uses maths to be 'bug free' goes open source
Hacker-repelling, drone-protecting code will soon be yours to tweak as you see fit
Cheer up, Nokia fans. It can start making mobes again in 18 months
The real winner of the Nokia sale is *drumroll* ... Nokia
Put down that Oracle database patch: It could cost $23,000 per CPU
On-by-default INMEMORY tech a boon for developers ... as long as they can afford it
Another day, another Firefox: Version 31 is upon us ALREADY
Web devs, Mozilla really wants you to like this one
Google shows off new Chrome OS look
Athena springs full-grown from Chromium project's head
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Securing Web Applications Made Simple and Scalable
Learn how automated security testing can provide a simple and scalable way to protect your web applications.