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Microsoft fires back
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December 23, 1997: 5:18 p.m. ET
Software giant opposes use of court expert, disputes government's claims
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NEW YORK (CNNfn) - Microsoft Corp. Tuesday said it plans to oppose the appointment of a special court expert in its ongoing antitrust battle with the government.
In the latest salvo in what is shaping up to be a bitter legal battle with the Justice Department, Microsoft challenged the appointment of Harvard law professor and high technology legal expert Lawrence Lessig and disputed the government's claim that it was trying to make a mockery of the U.S. judicial system by offering to sell PC makers an outdated operating system.
The company also said the Justice Department's request for a $1 million-a-day fine against the company should be denied.
The Justice Department contends Microsoft violated a 1995 consent decree by forcing PC makers who license the company's Windows 95 operating system to ship the Microsoft Internet Explorer browser as well.
However, Microsoft contends the browser is an integrated part of the operating system and the government knew that it planned to combine the two products before the agreement was signed.
Earlier this month, U.S. District Judge Thomas Penfield Jackson temporarily blocked Microsoft from requiring PC makers to bundle the browser along with Windows 95 pending further review by Lessig.
Microsoft's Windows operating system is installed on more than 90 percent of the world's computers, prompting rivals such as Netscape Communications Corp. (NSCP) to complain the company has an unfair advantage over other browser makers if it forces PC makers to bundle the Explorer browser with Windows 95.
Microsoft offers three alternatives
Microsoft responded to Jackson's ruling by saying it would comply with his order while it filed an appeal. The company said it would provide PC makers three options:
- they could continue to receive the full Windows 95 product, including its Internet Explorer features;
- they could remove from Windows 95 all the files that are included in the retail version of Internet Explorer 3.0 with the warning from Microsoft that the stripped-down version will not operate or perform as originally designed;
- or they could license the August 1995 version of Windows 95 with all of the Internet Explorer functions stripped out.
Microsoft's plan drew a swift attack from the Justice Department, which called the options an attempt by Microsoft to flout the judge's order. The Department also asked Jackson to fine the company $1 million a day.
In its response Tuesday, Microsoft said it was doing exactly what the judge had ordered.
"There is no way to remove part of the Internet Explorer 4.0 ... without also 'degrading' other functionality of Windows 95 because the exact same code provides both types of functionality," Microsoft told the court. "That code cannot be removed without impairing the operating system. It is that simple."
Microsoft Chief Operating Officer Bob Herbold told CNNfn the company, and not the government, should be allowed to decide which features should be included in its software. (273K WAV) or (273K AIFF)
Microsoft also took issue with a court demonstration last week in which Judge Jackson was able to remove the browser function from the operating system by using an "Add-Remove" program tool that comes with Windows 95.
"This case shows why judges should not engage in such extrajudicial fact-finding," the company said. "Contrary to the conclusion that the district court apparently drew from its experiment, the "Add/Remove Programs" utility removes only a very small subset of Internet Explorer 3.02 files.
"In other words, the great bulk of Internet Explorer 3.02 remains even after it has supposedly been uninstalled. The portions that remain can still be used to gain access to the Internet, and the few portions that are removed by the utility "degrade" features of the operating system other than Internet Explorer."
Microsoft said it also plans to oppose the use of the so-called "special master" on the grounds that numerous judicial functions delegated to a master -- including making recommended findings of fact and conclusions of law - should be exercised only by a U.S. court.
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