DOJ blasts foot-dragging charges

While awaiting a federal court hearing tomorrow that could determine whether Microsoft is in contempt of a judge's order to unbundle its Web browser from the Windows 95 operating system, the Justice Department has responded to allegations that it has waffled in prosecuting its case against the software giant.

The response was contained in briefs filed earlier this week by the two parties, in which they outline concise facts without legal arguments and conclusions. The briefs, known in legal parlance as "proposed findings of fact," provide a way for each side to present its best version of the evidence.

In defense of its prosecution against the software giant, the Justice Department accused Microsoft of trying to confuse technical issues at the heart of the case. In a brief filed Tuesday, for example, the government argued: "Because Microsoft Word delivers certain shared program libraries that, when installed on a computer containing Windows 95, may upgrade and replace certain essential Windows 95 system files, removing every file Word installs would disable Windows."

Microsoft has argued continuously that Internet Explorer is an integrated part of Windows 95 and that the two cannot be separated without breaking the operating system. The company's Windows software dominates the market for personal computer operating systems. Critics, such as attorneys for browser rival Netscape Communications, argue that Microsoft is leveraging its strength with Windows to gain an unfair advantage in the Internet software business.

The government brought its case against the company in late October, alleging that Microsoft's requirement that Windows 95 be shipped with the Internet Explorer browser violated terms of an antitrust settlement reached two years earlier. Microsoft contends that the 1995 consent decree specifically gives it the right to integrate products.

In December, U.S. District Judge Thomas Penfield Jackson appointed a computer expert to study the case and make a recommendation by May 31. He ordered Microsoft to separate browsing software from all its Windows products in the meantime.

Six days later, the Justice Department was back in court, alleging that Microsoft's plan to separate Internet Explorer only from older and "dysfunctional" versions of Windows violated both the letter and the spirit of the preliminary injunction. The government asked that Microsoft be fined $1 million for each day it was in contempt of the preliminary injunction.

Both sides extensively debated the matter in a two-day hearing last week. Jackson ordered the parties to file the proposed findings of fact Monday and to be back in court to make closing arguments tomorrow. Jackson has not indicated when he will rule on the matter.