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WASHINGTON -- Microsoft offered an appeals court on Monday its best reason not to be be split up, and he goes by the name of U.S. District Judge Thomas Penfield Jackson.
In the company's final brief to the D.C. Circuit Court of Appeals, Microsoft complained that Jackson's private comments to reporters during the case demonstrate his bias and prove his rulings cannot be objective.
"It is now apparent from the district judge's public comments that the relief awarded in this case was not a carefully tailored response to the antitrust violations found, but rather an attempt to punish Microsoft for what the district judge termed "'arrogance which derives from power and unalloyed success,'" the 175 KB brief says.
In earlier court documents, Microsoft has taken Jackson to task for his tendency to gab with the media about the trial, but Monday's filing represents the software company's most determined assault yet on his neutrality.
Jackson decided to carve Microsoft into two halves last year, but stayed his ruling temporarily.
Providing the embattled company with additional ammunition is Ken Auletta, a writer for the New Yorker, whose Jan. 15 article and recent book World War 3.0: Microsoft and Its Enemies include heart-to-heart conversations with the judge.
Jackson reportedly said that one of his motivations was personal pique directed at the same appeals court that's now hearing the case. "What I want to do is confront the Court of Appeals with an established factual record which is a fait accompli," Jackson is quoted as saying. "And part of the inspiration for doing that is that I take mild offense at their reversal of my preliminary injunction in the consent-decree case, where they went ahead and made up about 90 percent of the facts on their own."
A three-judge panel of the D.C. Circuit in early 1998 unceremoniously reversed Jackson's earlier ruling against Microsoft in a related case, and denied his appointment of Stanford University law professor Larry Lessig as a special master.
The appeals court is scheduled to hear oral arguments in this case on Feb. 26 and 27.
"We believe our appeal presents a strong case for reversal of the district court judgment," Microsoft spokesman Jim Cullinan said. "Our reply brief focuses upon significant concessions in the government's brief, including the concession that it was pro-competitive for Microsoft to include Internet technologies in Windows."
Microsoft's brief submitted Monday elaborates upon Microsoft's arguments in its appeal, filed last year after Jackson decided to carve the company into two halves. Its strategy takes a three-pronged approach: Dispute the facts, argue the law and blame the judge.
Microsoft says that it hopes the appeals court will review the facts of the case anew, saying the government goes "so far as to state that Microsoft had an exclusive contract with Compaq requiring it to ship only (Internet Explorer). These statements are likewise false. The undisputed evidence establishes that Compaq, Gateway and IBM all distribute Navigator."
The brief also argues that although the Department of Justice -- which filed the case in spring 1998 with over a dozen state plaintiffs -- accuses Microsoft of a "multifaceted campaign of exclusionary conduct" against Netscape, the browser company was still able to increase its user base from 15 million in 1996 to 33 million by the end of 1997.
Microsoft maintains that increase in number of users argues eloquently that Netscape was not "foreclosed" from the market, a legal test that the Department of Justice must meet. "Microsoft's inclusion of (Internet Explorer) in the operating system had no antitrust significance because it resulted in no foreclosure of competition in the putative 'Web browser' market," the brief says.
It says that under a legal test laid down by same appeals court in a related case, Microsoft can include new functions in its operating system as long as they have a plausible benefit to consumers.
Probably the most striking portion of the filing is its claim that Jackon's behavior provides an "independent" basis for overturning the verdict, or at least sending the case to another judge for another trial.
The Justice Department has replied in earlier briefs that it has "no reason to doubt Judge Jackson's impartiality."
Microsoft cites a 1921 Supreme Court case, Berger v. United States, that arose out of a trial of a German-American that took place during World War I.
The judge, Kenesaw Mountain Landis, said: "One must have a very judicial mind, indeed, not to be prejudiced against the German-Americans in this country. Their hearts are reeking with disloyalty."
That was enough for the Supreme Court to rule that he was unduly prejudiced.
That comment, says Microsoft, "is akin to the district judge's ad hominem remarks about Microsoft."
Jackson reportedly told Auletta that hearing Microsoft executives claim they did not violate antitrust laws was like listening to the "protestations of gangland killers."
In its brief filed on Jan. 12, the Justice Department said the Microsoft matter was "a classic case of monopolization" in which market dominance was used to sustain or extend that power.
"The district court acted properly in imposing the structural and conduct remedy for Microsoft's wide-ranging course of illegal actions," said part of the 150-page government brief.
