icrosoft and the group of states that are suing it each filed their final and most exhaustive written arguments yesterday, outlining why the landmark antitrust case should be resolved in its favor.
The documents, each about 500 pages, weave together the points each side scored with witnesses and exhibits in a two-month trial earlier this summer. They are intended to serve as a map for the federal judge who will hear closing arguments next week.
In their brief, the states highlight what they say was a concession by Microsoft's chairman, Bill Gates, on their proposal to require the company to provide a version of its Windows operating system that would allow several features to be substituted with programs made by its rivals. On the witness stand, Mr. Gates said that would be technically feasible, but not consistent with the language of the states' proposal.
"We say we accept that concession and that in fact it is consistent with the language," said Tom Greene, a lawyer for the states.
Microsoft argues that the states' proposal for a stripped-down version of Windows, as well as the other proposed restrictions, are not warranted by the antitrust violations that were upheld by an appeals court last June.
"These provisions address matters unrelated to the liability determinations upheld by the court of appeals — and hence are more likely to harm than to promote competition," Microsoft's lawyers wrote.
The appeals court found that Microsoft used illegal business deals and other means to protect its Windows operating system from competition by the Navigator Web browser from Netscape and Java programming language of Sun Microsystems.
The states argue that Microsoft should be prevented from using similar tactics with more recent rivals, like makers of business-level server computers, hand-held computers and interactive television software.
While the briefs contained little new material, legal experts said Judge Colleen Kollar-Kotelly of the Federal District Court in Washington was likely to rely on them heavily as she waded through the thousands of pages of the trial record.
Perhaps in anticipation of that, the judge ordered the two sides to submit their final briefs on a CD-ROM that includes a copy of the trial transcripts, so that she can click on a citation in the summary and follow a hyperlink to see the context of the original source.
"This judge has a real concern that her ruling be firmly rooted in the record," said John Shepard Wiley Jr., an antitrust law professor at the University of California at Los Angeles. "She is in a situation where two well-known and, up to that point, highly regarded district judges were removed from the case, and she wants to be able to say line by line, `here's where my ruling comes from based on the evidence that I heard.' "
Judge Kollar-Kotelly inherited the Microsoft case after Judge Thomas Penfield Jackson held the company liable for repeated antitrust violations and ordered that it be broken in two. An appeals court upheld part of Judge Jackson's ruling but overturned the breakup order and removed him from the case before sending it back to the district court to determine what penalties Microsoft should face.
The same appeals court removed Federal District Judge Stanley Sporkin from a previous antitrust case brought by the Justice Department against Microsoft after he ruled that a settlement the two sides had agreed to was not in the public interest. The appeals court ruled that the judge did not show appropriate deference to the Justice Department.
Judge Kollar-Kotelly must now decide whether a settlement reached by the Justice Department and Microsoft is in the public interest, or whether to impose any of the restrictions proposed by the states that are still pursuing the case. The states advocating tougher penalties are California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, West Virginia and Utah, along with the District of Columbia.
