Microsoft Moves for Dismissal

Microsoft Attorney Michael Lacovara continued his cross-examination of economist Carl Shapiro, attacking Shapiro's Parity Principle, which says Microsoft should provide the same ability for third-party software to integrate with Windows that Microsoft pro


Microsoft Corp. concluded its cross examination of the states final witness in its anti-trust remedies trial and immediately asked the judge to dismiss the case for lack of evidence.

The software giant asked for dismissal first as a matter of law, claiming the non-settling states "failed to meet their burden of proving causation and injury, both of which are necessary for an award of injunctive relief.

In an accompanying brief, Microsoft also argued that should Judge Colleen Kollar-Kotelly deny or reserve judgment on its motion to dismiss the case in full, she should, at least, strike the "unbinding" provision of the non-settling states remedy proposal. The unbinding provision calls for a version of the Windows operating system without certain middleware loaded, such that competing middleware could be alternatively added should a user or OEM prefer.

In its brief, Microsoft argued: "The non-settling states insistence on the removal of Microsoft Middleware Products in ection 1 of the states poposal -- as opposed to disabling end user access to such products -- contradicts earlier representations to this Court, the Court of Appeals and the Supreme Court as to what would constitute an appropriate remedy in this action.

Meanwhile, in response to Microsofts move to have the case dismissed, the U.S. Department of Justice, which has reached a settlement in its case against Microsoft, delivered a brief stating that "the United States does not believe that the arguments advanced in Microsofts motion mandate dismissal of the non-settling states claims as a matter of law."

Judge Kollar-Kotelly said she would take the motions under advisement, but instructed Steven Kuney, an attorney for the states to respond to Microsofts claims about the unbinding issue as soon as he could.

Meanwhile, Microsoft will begin putting on its case Tuesday morning with AMD Corp. CEO Jerry Sanders and University of Chicago economist Kevin Murphy, company officials said.

The motion to dismiss came after a morning session in which Microsoft continued to whittle away at it opponents anti-trust case Monday, attacking key points of the non-settling states claims and pushing a plaintiffs witness to admit his previous testimony may have implied too harsh a penalty for the software giant.

Microsoft Attorney Michael Lacovara continued his cross-examination of economist Carl Shapiro, attacking Shapiros Parity Principle, which says Microsoft should provide the same ability for third-party software to integrate with Windows that Microsoft provides for its own internal software.

In testimony here today, Lacovara got Shapiro to say that while he felt this principle should be the rule, he realized the wording in some provisions in the non-settling states proposals may go beyond his basic beliefs of what should and should not be allowable regarding Microsoft intellectual property.

For instance, although Shapiro said he supported the remedy provision to make Microsofts Internet Explorer browser open source, he did not support making other related client access APIs available to the public and to Microsoft competitors. Yet, Lacovara argued that as written, some of the states remedy proposals call for Microsoft to expose and share code that would actually be useable by Microsofts competitors to copy other Microsoft technologies not affected by the object of any remedy.

"I do not want to enable competitors to copy Microsoft innovation in other areas," Shapiro said. He said he did not think Microsoft should be forced to deliver additional information or APIs that could be used for copying.

"I think were in something of a pickle," Lacovara replied.

Lacovara went after Shapiros written testimony, asking: "Should the remedy be used to help those who dont help themselves?"

"Have you thought what the extent to which Red Hat or Linux generally are doing what they can to mount a challenge to Microsoft on the desktop?" Lacovara asked.

He then said Linuxs lack of a consistent graphical user interface, lack of battery life management, lack of key sound driver support, and inability to natively support Microsofts Office have hurt the operating systems competitive chances.

Lacovara also challenged Shapiro on some of the economists own writings regarding open source software. Citing what was then Netscape Communications Corp.s attempt to deliver an open source browser called Mozilla, Lacovara produced a February 1998 opinion piece Shapiro co-authored in the Wall Street Journal lauding Netscapes effort. By August of that year, in a Business 2.0 interview, Shapiro called the move an act of desperation.

Lacovara also challenged Shapiros reference in his written testimony to Apple Computer Corp.s Mac OS as a "direct rival" to Windows. Lacovara pointed out that the U.S. Court of Appeals said Apple did not represent a viable substitute and was not in the relevant market of Intel-based PC operating systems, upon which this case is based.

"Id say with a great deal of experience dealing with market definition¡¦the Mac OS is a substitute to some degree," Shapiro said.

He added that the lack of applications for the Macintosh has hurt its chances to be more of a rival and that the states provision to make IE 6 available for the Macintosh will help even more.

Lacovara and Shapiro went back and forth regarding the states provision that Microsoft must deliver Java with Windows. Lacovara argued that it was Javas own weaknesses, such as poor performance on the desktop, lack of tools, user interface and others that hampered the success of Java on the desktop.

But Shapiro said the must-carry Java provision "could do quite a bit if it helps to kick start Java on the desktop."

He added: "This will benefit the Java platform and I dont see Sun [Microsystems Inc.] as the only beneficiary if Java does better. I think therell be a lot of beneficiaries including consumers."