Feeds

MS asks again for Supremes not to hear its case

Last fling effort for lower court to hear appeal

  • alert
  • submit to reddit

The smart choice: opportunity from uncertainty

MS on Trial Microsoft had its last fling yesterday when it filed with the Supreme Court a reply brief to the DoJ filing last week. It doesn't add much, merely reiterating its belief that the Expediting Act gives the Supreme Court unqualified discretion not to hear a case. The Supremes of course would know this anyway.

The DoJ has made it clear that it thinks Microsoft is trying to slow down the case by asking that the lower court hears the appeal first. Microsoft denies this, claiming that "No one is more anxious than Microsoft to see this case brought to a prompt conclusion". This is of course true - but to Microsoft, the only conclusion it will accept is one that proclaims its complete innocence.

Microsoft also makes an effort to claim that the AT&T case was "very different", arguing that the Supreme Court did not need to review the "complex factual record". It may turn out that Microsoft is unwise to "cast serious doubt on the reliability of the district court as a finder of fact" if the case ends up back with Judge Jackson for the supervision of "draconian relief". In support of its plea that the Supremes should not have "the onerous task of reviewing 'the entire evidence'", Microsoft cheekily cites a study group report on the caseload of the Supreme Court. The court will be well aware of this too, since the docket has been growing by more than 100 cases a year since 1960.

Microsoft perversely twists the reason for Judge Jackson staying his judgement by claiming that he would not have done this had he believed that "immediate relief was necessary to prevent serious harm to the nation’s economy".

In a footnote, Microsoft argues that it never "threatened to terminate the Windows licence of any OEM that preinstalled Navigator". The fuller story is of course that when Compaq tried to drop IE, Microsoft threatened to cut off its Windows licence - and that OEMs that did not load Navigator were likely to get a better licensing deal. A petition to the Supreme Court was filed yesterday by the DoJ asking that the plaintiff states be granted standing before the court. This is a belt-and-braces precaution, since Microsoft had challenged the states'standing.

With more than 7,000 cases on the docket and only around 100 selected for plenary review, the statistical odds must be that the case will be sent to the court of appeals. Much will depend on whether the justices happen to have any strong feelings in the matter. Although they may not themselves be computer literate, they have an average of more than three children each (Justice Scalia has nine), so they may be get some family advice.

Even if the case is heard, there would be no jury, no witnesses, and probably just 30 minutes for each side to present its case. The next term starts on 2 October, and the earliest any decision is likely to be announced is 3 October.

Related Stories

DoJ rebuts MS brief, lobbies for Supreme Court hearing
MS slams judge in Supreme Court filing

Securing Web Applications Made Simple and Scalable

More from The Register

next story
NO MORE ALL CAPS and other pleasures of Visual Studio 14
Unpicking a packed preview that breaks down ASP.NET
DARPA-derived secure microkernel goes open source tomorrow
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
Google shows off new Chrome OS look
Athena springs full-grown from Chromium project's head
Apple: We'll unleash OS X Yosemite beta on the MASSES on 24 July
Starting today, regular fanbois will be guinea pigs, it tells Reg
HIDDEN packet sniffer spy tech in MILLIONS of iPhones, iPads – expert
Don't panic though – Apple's backdoor is not wide open to all, guru tells us
prev story

Whitepapers

Designing a Defense for Mobile Applications
Learn about the various considerations for defending mobile applications - from the application architecture itself to the myriad testing technologies.
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.
Top 8 considerations to enable and simplify mobility
In this whitepaper learn how to successfully add mobile capabilities simply and cost effectively.
Seven Steps to Software Security
Seven practical steps you can begin to take today to secure your applications and prevent the damages a successful cyber-attack can cause.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.