MS asks appeals court to find it a little bit not guiltier

Microsoft has responded to the DoJ's claim that neither party wanted the appeals court to rehear the antitrust case by, er, asking the appeals court to rehear the antitrust case. Or at least, to take another look at the browser integration issue.

By a massive coincidence, last week's government request was intended to get the case back into the district court (which is where the appeals court intended to send it) quickly. If granted, this would accelerate the case a tad, and maybe give the government enough space to threaten the XP rollout in October - if of course that's what it wanted to do. But if the appeals court did agree to take another look at integration, XP would surely be out before it could be brought down by an injunctive dart gun.

Not that this is quite how Microsoft pitches it. The company says it is seeking, for itself and for the good of the industry, the court's guidance on this matter. It also says it thinks that there was no basis for Judge Jackson's findings on commingling, which is hardly news, but there you go. The commingling issue relates to browser integration, but iit's not the entire jellyfish we're trying to nail to the wall here.

When it built IE into Windows, some of the code of IE was put together in DLLs with code needed for Windows itself to function. Microsoft insists this was done in the cause of efficiency, and because the functionality was related. The government on the other hand said (pretty convincingly) that a lot of it was just arbitrarily stuck together so you couldn't get IE out entirely without breaking Windows itself. The appeals court agreed with this.

While we should point and laugh as regards the 'good of the industry' bit, there is a serious point in there somewhere, but Microsoft really is stating the obvious here.

It would indeed be seriously helpful if there was a clear (or even a hazy) definition in law as to how far you could go in terms of trashing other companies' business by sticking more bits onto and together within your products but, as the appeals court said, right now there isn't. And as the appeals court also currently expects the district court to cover this area some more, it really doesn't look very likely that it's going to grant Microsoft's request.

The appeals court also did seem to find that there was a fair amount of basis for Jackson's findings; it rejected the browser integration segment largely because it felt the government and the court hadn't dealt with the monopoly aspect properly here. So it was more of a 'not proven' verdict. Microsoft surely can have little cause to hope that the judges are now going to change their minds on commingling, which was one of the areas where they weren't tentative in their findings, and agree with it that it can legally stick anything it chooses into whatever it chooses to call Windows. ®

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