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MS bids to stretch appeal to mid-2001, documentation to moon

Only 19 things wrong with Jackson's verdict, apparently...

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MS on Trial "The scope of this case is monumental," Microsoft claimed while asking the court of appeals for a slow-track appeal process over five months. It also wants its principal brief to be 56,000 words - four times longer than is normally allowed - and for its reply brief to be 28,000 words, which is twice the normal length.

Microsoft wants each side be given 60 days to prepare the initial briefs, and that Microsoft be given 30 days to reply. This would make it April or May before the oral hearing, for which Microsoft wants 90 minutes. An unusual feature of Microsoft's proposal is that it suggests that the court considers requesting supplemental briefs.

The DoJ said that "Microsoft's proposal would unnecessarily delay proceedings and postpone resolution of the appeal". The DoJ's proposal as to the timing will be known on 5 October, and Microsoft will respond to this by 10 October.

Apart from the clear desire for Microsoft to postpone any final resolution of the case for as long as possible, the political dimension is that Microsoft must be hoping that the next assistant attorney general for antitrust will be more sympathetic to it.

In outlining the argument it wishes to make, Microsoft says that "the district court's decision was infected by a multitude of serious substantive and procedural errors", the greatest of which of course was that Judge Jackson did not find for Microsoft. The judge is again attacked, this time for saying last week that "Virtually everything I did may be vulnerable on appeal". Microsoft claims in its Motion that a conduct requirement in the judgement required it to disclose the internal workings of its "copyrighted operating systems" to its direct competitors. This whinge stretches credulity, since it is inconceivable that any competitor could take advantage of such a situation.

In an appendix to its Motion, Microsoft nails its list of 19 legal issues to the door of the court of appeals. These include the product market definition, whether there were barriers to entry into the OS market, whether Microsoft has monopoly power and maintained it with anticompetitive conduct, and whether Internet Explorer was illegally tied to Windows. Microsoft also advances again the idea that its Windows copyright prevents OEMs from using their own start-up sequences, but should the court of appeals uphold this, it could misfire with the Supremes, as it would extend current law and have international repercussions.

Some of the district court procedural decisions that Microsoft bitterly attacks do give the court of appeals some latitude for criticism of the lower court, but since - as Microsoft keeps pointing out - there is a great deal of evidence on record, it weakens the case that Microsoft has been significantly curtailed in the presentation of its defence. Another indication of the court of appeals attitude to the case will be seen when the seven-member panel of judges issues its scheduling order. ®

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