Declaration of Eric Browning
I, Eric Browning hereby declare as follows:
1. I have been compelled to appear and provide deposition testimony to the United States Department of Justice in connection with its investigation of Microsoft Corporation's conduct relating to the licensing, marketing and distribution of operating system and Internet browser products. With the understanding that I remain subject to being required to appear and provide testimony, I have chosen to provide the following Declaration instead of having my deposition taken at this time.
2. I am currently the Department Manager for Product Enhancement at Micron Electronics, Inc. Micron is a manufacturer, among other things, of desktop and portable personal computers. In my current position, I am responsible for what software to install on and include with Micron's personal computers. In addition, I have been responsible for the negotiation of the license agreements with Microsoft and other software vendors under which Micron obtains the legal right to reproduce and redistribute such software with its personal computers. I have been employed by Micron since December 1995, prior to which I worked in the software industry for Novell, Inc. and WordPerfect Corporation.
3. In the summer of 1995, prior to the release of Microsoft's Windows 95 operating system product, Micron entered into a license agreement with Microsoft to obtain the right to copy and distribute Windows 95 on its personal computers. To date, the license agreement has been amended seven times, with the most recent amendment signed on July 31, 1996. The license agreement, as amended, expires on October 31, 1997.
4. Micron currently preinstalls Windows 95 on the hard disk of approximately 70 to 75% of its total shipments of desktop and portable personal computers. The remainder of Micron's computers are shipped with other Microsoft operating system products (i.e., Windows NT, Windows For Workgroups/MS-DOS). Being able to license and distribute Windows 95 is essential to Micron's business because Micron's customers expect an operating system to be preinstalled on the computer they purchase, and because they overwhelmingly expect that operating system to be Windows 95. I am not aware of any other non-Microsoft operating system product to which Micron could or would turn as a substitute for Windows 95 at this time.
5. Under the terms of its Windows license agreement, as they have been explained to me by Microsoft representatives, Micron is required to preinstall the current version of Microsoft's Internet browser product (Internet Explorer 3.0) on every personal computer on which it preinstalls Windows 95. Micron is not, however, required to preinstall Internet Explorer 3.0 on personal computers shipped with Microsoft's Windows For Workgroups operating system product, even though a version of Internet Explorer 3.0 that is compatible with this operating system exists.
6. In early 1996, Micron entered into an agreement with SpryNet, an Internet Service Provider. As part of this agreement, Micron was able to choose whether purchasers of its personal computers would be provided Internet Explorer or Netscape Communications Corporation's Navigator browser when they signed up with SpryNet. At that time, I selected the SpryNet version of Internet Explorer.
7. Sometime in early or mid-1996, as a result of its relationship with (and expectation of "bounty" payments from) SpryNet and its concern than its customers would be confused by the presence of two separate methods of accessing the Internet on Micron computers, Micron considered whether it could and should remove the software code constituting Internet Explorer from the package of software received under the Windows 95 license agreement. In my view, based on my general understanding of the nature of the code and file structure of the Internet Explorer and Windows 95 (although I am not an engineer), it is technically feasible to remove both the Internet Explorer icon and the software code constituting Internet Explorer form Windows 95 without impairing the proper functioning of the operating system.
8. Having determined that removing the Internet Explorer icon and code from Windows 95 would be desirable in order to enhance its customers' satisfaction with Micron's computers and reap the maximum benefit from Micron's relationship with SpryNet, I contacted a Microsoft sales representative to inquire whether Microsoft would permit Micron to remove Internet Explorer from Windows 95. Through telephone conversations, Microsoft denied this request. To the best of my knowledge, the issue was not escalated above anyone other than our Microsoft sales representative. As a result, as noted above, Micron currently must preinstall Internet Explorer 3.0 on all personal computers shipped with Windows 95.
9. In my view, it is desirable for Micron to be able to choose which browser(s) it preinstalls and to be able to customize the preinstalled browser(s) as a way of enhancing and personalizing its customers' experience with Micron's PCS. Indeed, for this reason Micron has customized the SpryNet version of Internet Explorer that Micron's customers access when they sign up for Internet service through SpryNet. By contrast, it is my understanding that, as a result of the terms of the Microsoft license agreement covering Windows 95 (and Internet Explorer), Micron is prohibited from customizing or modifying in any way the version of Internet Explorer that comes bundled with Windows 95.
10. In the summer of 1996, in the course of negotiations in connection with the seventh amendment of the Windows license agreement between Micron and Microsoft, I asked a Microsoft representative whether Micron could, under the terms of the agreement and for reason similar to those underlying its earlier interest in deleting Internet Explorer from Windows 95, delete icons for online services (e.g., America On-line, Compuserve) that Microsoft places in the "Program" menu included as part of Windows 95. As with the removal of Internet Explorer, the Microsoft representative informed me that deleting the icons would not be allowed, explaining that the deletions would violate language in the Windows 95 license agreement that prohibits Micron from deleting or modifying any aspect of the "Product software" provided under the agreement. The Microsoft representative also referred to this prohibition as part of Microsoft's "Windows experience" initiative, which he explained as intended to ensure the integrity and uniformity of Windows 95 as received by computer users. Although I consider it strange that the inclusion of software icons for products produced by companies other than Microsoft should be included as part of the "Windows experience," Micron has adhered to the prohibition as explained and interpreted by the Microsoft representative.
11. I understand that Microsoft will be introducing a new version of Windows, currently called Windows 98 or "Memphis," sometime during 1998. I anticipate, for many of the reasons that Windows 95 is essential for Micron to license and preinstall on its personal computers now, it will be essential for Micron to license and preinstall Windows 98 when it is released. In my experience, computer purchasers expect and demand the most current version of an operating system product, and this is likely to be true with respect to Windows 98.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed at ______________(signed "Nampa, Id") on October ___(signed "14"), 1997
__________________(signed "Eric Browning")