Judge miffed at Microsoft on OS

Attorneys for Microsoft (MSFT) and the Justice Department spent

Courtroom sketch of MS attorney Richard Urowsky, right, sparring with Judge Thomas Penfield Jackson. (AP)

Apparently, Judge Thomas Penfield Jackson didn't like the answer by Microsoft's expert.

The semantics played a key role in questioning during day two of the contempt hearing in the U.S. District Court here. Microsoft is looking to prove that it didn't violate Jackson's preliminary order that required the company to offer computer makers the option to include or exclude its Internet Explorer browser with the Windows 95 operating system.

But during testimony in the afternoon, Jackson showed his strongest sign of displeasure during the two-day hearing as he listened to David Cole, a Microsoft vice president who oversaw the development of Windows 95.

His voice rising, Jackson asked: "It seemed absolutely clear to you that I entered an order that required that you distribute a product that would not work...That's what you're telling me?"

Cole responded: "In plain English, yes. I followed an order. It wasn't my place to consider the consequences of it."

He also confirmed that Microsoft chairman and CEO Bill Gates took part in a meeting held to determine a response to the court's December 11 order.

The antitrust case against Microsoft originated when the Justice Department filed an enforcement action against the software giant last October, alleging that it violated a 1995 consent decree that said the company wouldn't tie the sale of its Windows operating system to any other application.

Jackson issued a preliminary injunction in December that prevented Microsoft from requiring computer manufacturers to carry Explorer with Windows 95. When Microsoft responded by giving computer makers the choice of using a dated version of Windows without the browser or instructions on how to delete IE files, rendering the system inoperable, the Justice Department filed a contempt charge and is seeking a $1 million a day fine until the software maker complies with the judge's order.

Today's pointed exchange between judge and witness took place as Justice Department attorney Phillip Malone displayed a copy of a letter Microsoft sent to computer makers on how to delete the IE files.

Malone, showing the letter on an overhead projector, had asked Cole why Microsoft told PC manufacturers to delete certain IE files.

"I looked for files distributed at retail as Microsoft Internet Explorer, as ordered by the court," Cole answered.

Malone said: "So, you relied on the language of the order?" Cole confirmed that this was the case.

Earlier in the day, Cole demonstrated how the operating system responds when IE 3.0 is deleted. Using Windows 95's add/remove utility to take the IE start-up icon off the desktop and delete it from the menu selections, he showed that Web-browsing functions could still be performed on the computer.

The point of the demonstration was to show that the browser was part of the operating system because the browsing functions remained on the OS.

In one example, Cole used Visio's macro language to write a program that starts up an IE browser. In another demonstration, he showed how Quicken financial software could still be used to enter Web sites, even though the IE icon had been removed.

Microsoft attorney Steven Holley asked Cole: "The court has ordered Microsoft to give OEMs [original equipment manufacturers] a version of Windows 95 without IE. What would Microsoft have to do to allow other applications to access the Web [without IE]?"

Cole said: "We would have to add back some files, change install scripts, and make sure it works. So we would have to do quite a bit of work."

He added that running the add/remove utility would not comply with the court's order.

Jackson's questions, meanwhile, ranged from whether competitors' software could be installed after applying the add/remove utility to IE to whether Microsoft's license agreements with computer makers permitted them to install rival Netscape Communications' Navigator browser.

Cole replied that computer makers' license agreements do allow them to add Netscape software and that the remaining IE technology, despite the icon's removal, would allow the installation of Navigator.

In his cross-examination, Malone grilled Microsoft's witness on what would happen if the add/remove utility is run, looking for ambiguities in the definition of "remove."

"When you click on Internet Explorer in the add/remove utility, the dialog box says this will remove Internet Explorer. What do you think the user is thinking?" Malone asked Cole.

Cole responded: "I can't speculate."

Malone shot back: "Microsoft is telling the user that the add/remove utility will remove Internet Explorer, right?"

Cole replied: "We used a very generic term to describe the process."

The Microsoft executive further noted that the purpose of the add/remove utility was designed to allow corporate customers the ability to remove Internet browsing capabilities to prevent employees from surfing the Web on company time.

Malone, addressing Microsoft's stance that Windows 95 is not fully operational if IE is removed from Windows, asked Cole the following: "You said using add/remove utility will degrade the operating system. If an end user removes IE using the add/remove utility, the utility does not provide any warning that removing IE will degrade performance."

Cole answered: "That is correct."

As the two-day hearing came to a close, Jackson asked both parties to submit certain documents Monday and to appear at a hearing for closing arguments tomorrow morning.

A Justice Department official said the outcome of the contempt hearing is probably weeks away.

Both sides in the case claimed they had accomplished what they came to do this week.

"There were really no surprises," said A. Douglas Melamed, the government's principal deputy assistant attorney general for antitrust issues. "It was a good hearing. We wanted to get on the record with the facts in the case, and we'll be ready for closing arguments next week."

William Neukom, Microsoft's senior vice president for law and corporate affairs, said "we wanted the opportunity to explain why we had addressed the preliminary injunction. We have shown that the new version of the government's relief [separating Internet Explorer from Windows 95] would lead to impractical results.

"Microsoft made it very clear in written submissions that the proposal of the government to remove all Internet Explorer code would disable Windows 95," he added.

Microsoft spokesman Greg Shaw rebuffed speculation that Jackson may be running out of patience with the software giant, saying that the judge's sharp line of questioning is routine in court proceedings, and that his request that both sides submit additional briefs indicates he has yet to make up his mind.

"The main point is we looked very closely at the order," Shaw said. "We feel we did precisely what the order asked us to do."