Justice fires back at Microsoft

Microsoft Corp. is misinterpreting a court order to unbundle Internet Explorer from Windows 95 and is "jerry-rigging" its products rather than make it easy for PC manufacturers to uninstall the browser from the operating system, the U.S. Department of Justice (DOJ) said today in a court filing.

"Microsoft is in clear violation of both the injunction's 'letter and spirit,'" the DOJ said in its filing.

District Court Judge Thomas Penfield Jackson issued a preliminary injunction in early December ordering Microsoft to stop requiring PC manufacturers to preinstall the Internet Explorer (IE) browser as a licensing condition for Windows 95. While saying the DOJ had not convinced him that Microsoft was violating a 1995 antitrust consent decree barring Microsoft from tying the licensing of one product to licensing of another product, Jackson said it was still to be determined whether Microsoft was violating the consent decree. He also appointed a special master to report back to him by May 1998, which Microsoft has contested.

Microsoft contends it has complied with the court order. The company argued last week that the DOJ's initial solution to have Microsoft remove all IE code from Windows 95 would impair the operating system's function and that a more recent DOJ solution to offer a version of Windows 95 in which IE has been uninstalled using the operating system's Add/Remove Programs utility would merely disable the browser and thus prevent full compliance with the court order to remove IE.

"Microsoft's position is untenable," the 11-page DOJ filing said. "Microsoft's refusal to focus on the language of the injunction, or to read it "in light of the circumstances surrounding its entry... has produced a 'patently unreasonable,' 'twisted' and 'tortured construction' of the Court's Order that renders it 'a nullity.'"

"Microsoft's offer of another 'option' - an outdated, and therefore to OEMs (original equipment manufacturers) commercially unviable, version of Windows 95 ... - demonstrates Microsoft's own discomfort with its position and reinforces the conclusion that the Court's Order cannot reasonably be read as Microsoft construes it," the filing said.

Microsoft is "jerry-rigging its own products - deleting files that otherwise need not be deleted" while simultaneously advertising that an uninstall capability enables users to eliminate IE from Windows 95 if they desire, the DOJ filing said.

A spokeswoman for Microsoft said the company was still reviewing the filing. "We believe we're completely complying with the court's order in good faith," said Melanie Hoelscher of Microsoft's public relations firm Waggener Edstrom. She reiterated the company's claim that the DOJ has "waffled" on describing what Microsoft would have to do to comply with the injunction and said that "proves IE technology is integral to Windows 95."

A Jan. 13 hearing is scheduled at which Microsoft plans to explain technical aspects of removing IE code from Windows 95, Hoelscher said.

Meanwhile, officials from Microsoft and the DOJ were scheduled to meet Dec. 30 with the special master, Harvard law professor Lawrence Lessig. Hoelscher said she did not know the status of that meeting in light of Microsoft's request last week that the special master be removed from the case.

Today's DOJ filing also included as exhibits three news articles from Wired and other industry web sites that discuss technicalities of removing IE from Windows 95.