Microsoft is quoting from an email sent by Netscape?s counsel in a last-ditch attempt to have its Department of Justice (DoJ) antitrust case dismissed.
On Tuesday, Microsoft filed a brief in support of its Motion for Summary Judgement. The 48-page document was also posted on the company?s Web site.
?Based on the facts and the recent appeals court decision, we believe the case should be dismissed now, without a long and costly trial,? said Microsoft?s senior vice president for law and corporate affairs, William Neukom, in a statement.
On 3 September, judge Thomas Penfield Jackson granted the DoJ?s request to force Microsoft to hand over documents relating to the company?s dealings with firms including Apple, Intel and Real Networks. But Microsoft chose to interpret this as proof of the weakness of the DOJ?s original case.
?By trying to rewrite and expand their case in the past month, the government has shown a lack of faith in the case they filed last May, after nearly two years of investigation,? continued Neukom?s statement. ?If the government wants to make new accusations, they should be required to file a new complaint, rather than inflating and complicating this case.?
According to the Microsoft brief, the government is attempting, ?to distract the court from the fatal defects in their claims by slinging as much mud as they can at the defendant and by giving prominence to numerous irrelevant facts in a desperate attempt to cloud the issues.?
Among these ?fatal defects? in the DoJ?s original complaint, claims Microsoft, is the DoJ?s failure to prove that Microsoft Windows and Internet Explorer are two different products, which according to Microsoft means that it cannot be accused of illegal tying between the two.
The Microsoft brief quotes from an email sent by Netscape?s counsel to the DoJ?s assistant attorney general Joel Klein:
?We are totally unable to provide examples of files that can or cannot be deleted from Windows 98 since, as we discussed this week, it is our understanding that it simply is not possible to delete any portion of Internet Explorer, or of browsing functionality, from Windows 98 as presently configured without severely interfering with the operating system.?
Microsoft is taking this as proof that Netscape, the victim of its alleged anticompetitive practices, accepts at least on central tenet of Microsoft?s defence: that the Windows operating system and Internet Explorer are one, integrated product.
Another ?fatal defect?, according to Microsoft, is that the DoJ has failed to show that Netscape was foreclosed access to customers, a key accusation in the antitrust case. Microsoft claims the opposite is proven by Netscape documents that it has obtained, but that it can not disclose because of the protective order imposed by the court.
Microsoft also quotes last week?s Netscape press release that states that more than 12.4 million copies of Netscape Navigator and Communicator have been downloaded since July.
Oral arguments on the motion for summary judgement are expected to begin on Friday. The antitrust trial itself is still scheduled to commence 23 September.
Netscape failed to respond to calls by press time.
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