Microsoft contests DOJ evidence

Microsoft (MSFT) bolstered arguments it made in a hearing today by filing a series of last-minute documents arguing why it should not be found in contempt of a 1995 court order.

The unscheduled filing rebuts a number of arguments the Justice Department made last week in court papers.

Specifically, the software giant takes aim at allegations that all along it has viewed Windows 95 and Internet Explorer as separate products. The Justice Department submitted a number of internal Microsoft memos, including one that quoted a company executive calling the browser an "add-on" to Windows 95 and suggesting that the company use the awesome market share of the operating system to "leverage" IE.

The allegations were damaging to Microsoft for several reasons. For one thing, they appeared to deflate its arguments that the company has long intended to build IE into Windows 95 and clearly communicated that intention to the government when negotiating the consent decree, which was formally approved in 1995. In addition, the memo appeared to be an acknowledgment that the company had consciously attempted to use its operating system monopoly to push its fledgling browser software.

But a declaration filed by Jim Allchin, the Microsoft senior vice president who authored the memo, said the Justice Department has misconstrued the memo, sent as part of an email to Paul Maritz, another high-ranking executive.

"The point I was making in the email message was that Microsoft should focus its ongoing operating system development efforts on the technical benefits of the integration between Internet Explorer and the remainder of Windows because that would provide a better solution for customers and third-party software developers, and thus benefit Microsoft," Allchin's declaration states.

He goes on to say that his message simply "concerns 'leveraging' Windows as a matter of software engineering to build a better product."

But the denial doesn't seem to be supported by a part of the email that reads: "Treating IE as just an add-on to Windows, which is cross-platform, [is] losing our biggest advantage--Windows market share."

Another declaration, penned by Microsoft executive David Cole, refutes Justice Department contentions that the company "should have no difficulty" removing IE 3.0 files that are embedded in Windows 95. Cole counters that the statement was made based on an older version of Windows that is no longer widely used but is not applicable to the current version, known as OSR 2.0.

"If Microsoft were to develop a new version of OSR 2.0 that excluded these IE 3.0 files, the resulting operating system would not work at all," Cole writes. "The user would simply see an error message."

Justice Department officials were not immediately available for comment. But Gary Reback, an attorney at Wilson, Sonsini, Goodrich, & Rosati and longtime Microsoft critic, said on the surface the filings sounded like "hogwash."

"The point is, I shouldn't have to have an MIS person to buy a machine that has Windows 95 and no Internet Explorer," he said.

Other documents filed by Microsoft included various memoranda. One attempts to block the court from accepting a "friend of the court" document backing the government that was filed recently by the Computer & Communications Industry of America. Another opposes a government motion to unseal certain exhibits the Justice Department has submitted in the case.