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An amicus curiae brief filed by two computer trade groups stole the show on May 24 in the government’s antitrust suit against Microsoft Corp. Judge Thomas Penfield Jackson singled it out as “an excellent brief” during a hearing in a Washington, D.C., federal courtroom, and hinted to Justice Department lawyers that they may want to rely on it as the government drafts its final breakup proposal. But a source close to the government case said Thursday the Justice Department will, by and large, stick to its original plan. The brief, filed by the Washington, D.C.-based Computer & Communications Industry Association and the Software and Information Industry Association, calls for a three-way breakup of Microsoft into application, operating system and Internet browser companies. The Justice Department has proposed a two-way breakup, allowing browsers to stay within the proposed applications company. Jackson ordered government lawyers to revise their remedy proposal and file it today. The presidents of the CCIA and SIIA, both lawyers, were pleased Jackson singled out their proposal, filed just one week ago. “We liked the Justice Department proposal,” said Edward Black, CCIA president. “I think what we brought to the table was a little more history.” The government’s proposal didn’t go far enough, Black said. “Both remaining companies would be monopolies.” In their brief, Black and Ken Wasch wrote: “Microsoft did not have a browser monopoly when the trial began, but it acquired one in the meantime. Even during a time period in which one would expect Microsoft to be most restrained, it extended its market power.” Black’s organization represents dozens of companies, including several industry giants. He called his proposed split “moderate-plus.” On May 25, Jackson seemed to tip his hand that Microsoft’s best chance is to take its case to the court of appeals. Microsoft had tried to call a number of witnesses during the remedy phase of the trial — including chairman Bill Gates, a witness Jackson repeatedly suggested be called during the fact-finding phase — but instead, the judge abruptly cut off further hearings. Jackson also queried government lawyers about why they didn’t argue for a three-way split. “Why aren’t you doing that?” Jackson asked. Last month, Jackson ruled that Microsoft was a monopoly that used its power to crush competition. The remedy phase of the trial has spawned several amicus briefs, many of which call for harsher penalties than the government is seeking. The trade groups’ brief is one of the more moderate ones. “We knew we had a good brief. We knew it would get some attention,” Black said. “I don’t think we expected to be the item of the day.” Microsoft lawyers said the brief was motivated by its competitors. SIIA is the largest organization of its kind in the country. Its board of directors includes representatives from several Microsoft rivals, including Oracle Corp., Sun Microsystems Inc., Apple Inc. and Netscape/AOL. Microsoft isn’t a member of either group. CCIA’s Black resented the way the organizations were painted in the courtroom. “Less than 10 percent of my members fit their description of us,” said Black, who was at the hearing. “I’ve got lots of companies … that are not competitors of Microsoft.” As a matter of law, of course, the membership of each group matters little. Both appear to have scored points with the judge, if not the Justice Department. “The judge only got the thing on Monday, and he was talking about it on Wednesday,” said SIIA president Wasch. “So he was reading the thing at night.”

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