MS slams judge in Supreme Court filing

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MS on Trial Microsoft has filed with the Supreme Court its view as to why the Court of Appeals for the DC Circuit should first hear its appeal. The arguments are principally that the case is too big and complex for the Supremes; that there are many factual issues best resolved by a lower court; and that the trial was flawed because Judge Jackson erred in the procedures he set, and ignored the Federal Rules of Evidence.

At this stage the justices have been given less than 300 pages from the District Court - the findings of fact, the conclusions of law, and the final judgement - but the full record of the case is considerable (1,815 pages of written direct testimony, 13,466 pages of trial transcript and 2,695 trial exhibits).

The decision as to whether the court will hear the case or send it to the lower court will depend on several factors. It is certainly true that "much of the evidence relates to highly technical issues of software design", as Microsoft chillingly puts it, in an attempt to scare the Supremes off. Another factor is whether the Supreme Court wants to take the teeth out of antitrust law. It has been widely thought that this was the case, but few would doubt that the breakup of AT&T - the last big case decided by the justices - was very successful.

The average age of the justices makes it unlikely that they have more than consumer-level experience with Microsoft software, which may be good or bad. Judicial politics - specifically the relationship between the DC Circuit and the justices - is also an unknown factor, but if there is any antithesis, it could influence a decision to accept the case. A final factor is the extent to which the justices will be pro-US business interests and reluctant to harm an American icon.

Hang the judge?
Microsoft has presented a highly coloured version of the district court's actions, one of the most extraordinary parts being an attack on Judge Jackson's press interviews. Microsoft is skilled at getting District Judges sacked by the Court of Appeals, and Judge Stanley Sporkin was removed in 1995 at the end of the consent decree case. Microsoft complains that "the district court... had been granting extrajudicial interviews to members of the press for nine months, i.e., since before entering its findings of fact. The district court's blunt comments to the press raise serious questions about its impartiality and betray a misguided belief that appellees were entitled to the remedy of their choice, no matter how extreme, simply because they had prevailed on liability."

It is known that the Judge Jackson shared a taxi with journalists from time-to-time at the end of the day, but it is most unlikely he was indiscrete on such occasions. Microsoft quotes the judge saying to the WSJ on 8 June: "It's procedurally unusual to do what Microsoft is proposing - are you aware of very many cases in which the defendant can argue with the jury about what an appropriate sanction should be? Were the Japanese allowed to propose the terms of their surrender? The government won the case."

Microsoft also claims that "The New York Times reported on 9 June that ‘Judge Jackson agreed to be interviewed several times after testimony in the trial had ended, with the understanding that his comments could not be published until the case had left his courtroom. The discussions, beginning last September, were friendly, informal and unstructured.'" In a February 2000 interview, the judge commented on the possible breakup of Microsoft in what the NYT called "a rare audience with a sitting judge during the course of a trial". He also apparently said in another interview, agreeing to the DoJ's proposed relief, that: "I am not in a position to duplicate that and re-engineer their work. There's no way I can equip myself to do a better job than they have done." As for Microsoft's desire to present evidence about the relief proposed, he said: "I am not aware of any case authority that says I have to give them any due process at all. The case is over. They lost."

In support of its criticism, Microsoft quotes the Code of Conduct for United States Judges, which says: "A judge should avoid public comment on the merits of a pending or impending action", but although interviews may have been unwise, it is quite clear that "should avoid" is guidance. The official commentary adds: "The admonishment against public comment about the merits of a pending or impending action continues until completion of the appellate process" so it may transpire that Judge Jackson is ticked off about this, but it hardly seems to warrant his removal from the case, as Microsoft is requesting. Microsoft lists 19 "errors" it claims were made by the district court (and the list is not exhaustive, Microsoft adds), arguing that these make the case unsuitable for direct appeal.

Copyright argument retreaded

Microsoft is sufficiently thick-skinned to use again many legal arguments laughed out of the District Court. The old chestnuts of the attempt to deprive it "of its rights under federal copyright law by requiring it to license altered versions of its copyrighted operating systems" is there, as is: "at trial, the district court largely suspended application of the Federal Rules of Evidence, admitting numerous newspaper and magazine articles and other rank hearsay." No mention of Microsoft's exhibits of computer trade press articles "proving" that IE was better than Navigator, of course. In the submission, Microsoft repeats arguments that have been dismissed, as though they were new and relevant.

Passions aside, there might well be some merit in the Court of Appeals first hearing an appeal, were it not for two compelling circumstances. First, the Court of Appeals has made it rather clear by its corporate body language that it's on Microsoft's side. This is confirmed by Microsoft's desire to get the case moved there, and the court's over-swift action, which Microsoft mentioned in its submission: "Microsoft filed its notices of appeal on June 13, 2000. Less than one hour later, the court of appeals sua sponte issued orders providing that ‘all motions and petitions filed in these cases shall be heard by the court sitting en banc.'" Second, there is a real need to restore competition to the industry as quickly as possible, and delays are very damaging to consumers and the industry.

It is also inappropriate for the loser in such a case to try to get in effect a new hearing by trawling again through factual issues. Microsoft's claim that "immediate consideration of Microsoft's appeals by this court Is not of general public importance in the administration of justice" is directly controverted by Microsoft's remark about "the significance of these cases to the Nation's economy" - although of course Microsoft tries to suggest that the "normal route" should be followed by remanding the case to the Court of Appeals.

Even Microsoft is admitting that if the case is remanded it would take longer to resolve, and concludes that "The importance of these cases will not lie in how quickly they are resolved, but in their long-term effects on consumers and this Nation's economy." The DoJ's response on 15 August should be very interesting. ®

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