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MS, judge differ on compliance

U.S. District Court Judge Thomas Penfield Jackson makes one thing clear: He's taking no guff from Microsoft.

WASHINGTON--U.S. District Court Judge Thomas Penfield Jackson made one thing clear today: He'll take no guff from Microsoft (MSFT), no matter how big or successful the software giant is.

Today, Microsoft squared off against the Justice Department in federal court here, saying the government gave two conflicting requests on how it should obey a preliminary injunction and therefore should not be found in contempt of court.

The day's testimony was highlighted by verbal sparring between Judge Jackson and Microsoft's lawyers. Speaking before a packed courtroom, company attorneys attempted to blame the confusion regarding the judge's temporary order on the government.

During one pointed exchange, Microsoft attorney Richard Urowsky said the company had carefully reviewed government briefs in deciding how to comply with Jackson's ruling to provide a version of Windows 95 without the Internet Explorer Web browser to PC makers.

Before Urowsky could go on, the judge interrupted: "What the government requested is not the same as what I ordered."

Urowsky replied: "I beg to differ with you."

After more discussion, Jackson said firmly: "It is my language and my language alone that is at issue here."

Urowsky said that in seeking to follow Jackson's December 11 preliminary injunction, Microsoft had noticed that some of the judge's reasoning--although not the order itself--was similar to phrasing in Justice Department briefs.

Urowsky added that the company had done what the Justice Department suggested--removing all files contained in its Internet Explorer software--and that was why Windows 95 would not work.

"Now the government seeks to charge contempt for doing exactly what the court ordered," he said. "The government engaged in disingenuous activity."

Jackson said repeatedly that Microsoft should have looked at his language instead. He finally asked Urowsky if he had given any consideration to seeking clarification from him: "Once you discovered that the government said you were not in compliance, did you give any thought as to what you could do?"

"We gave very careful consideration of that," Urowsky replied, but ultimately Microsoft decided to appeal Jackson's order.

He said that "removing the Internet Explorer retail product from the operating system would seriously degrade the operating system. The government should have known that. We sought relief within two days of the order.

"The government got what it wanted knowing full well what the consequences would be," Urowsky concluded. "It is the government and not Microsoft that is the cause of any confusion that might have been created in the mind of the court and the view of the public."

Phillip Malone, a government attorney, countered that the judge's order was broad and specified no particular method for compliance, leaving the company some latitude.

He accused Microsoft of taking an "extreme and illogical course" and said that the removal of virtually any Windows application--including third-party programs--would break Windows if done the way Microsoft removed its browser.

The central issue is whether the judge's order is clear, and if so, what Microsoft needs to do to be in compliance with an earlier consent decree. Both sides, however, don't agree on what files compose Internet Explorer, and whether the browser is actually a separate application.

The Justice Department contended that deleting Internet Explorer does not require removing all the files or "breaking" the Windows 95 operating system. Microsoft has claimed that removing the files would make the OS inoperable.

"We will establish that there is nothing unique about IE," said Malone in his opening statement this morning. "If one uses the delete utility, there is no harm to the operating system."

He argued that IE is simply another Windows application, likening it to Microsoft Word or Excel. Malone, for example, cited how IE 3.0 is sold in retail stores as part of the Internet Explorer Starter Kit, indicating that Microsoft should be able to extract its code without damaging the operating system.

After presenting the opening arguments, the Justice Department showed a videotape of expert witness Glenn Weadock, a computer consultant and author of Bulletproofing Windows 95, as he removed IE 3.0 from Windows 95 using the Add/Remove programs utility.

In afternoon testimony, Weadock declared that after removing IE from Windows 95 using the utility, visible access to Internet Explorer was removed--along with Window's Internet Connection Wizard and access to AT&T's WorldNet service software--but that the operating system was otherwise unharmed.

During questioning by Pauline Wan, an attorney representing the government, Weadock stated that if he were to delete all the files that constitute the retail version of IE 3.0, as Microsoft has suggested must be done to be to comply with Jackson's order, that this would "break Windows."

Weadock also said that after deleting IE, he successfully installed other applications, including Symantec's Norton Utilities 3.0, and Microsoft Office 97, and that they worked flawlessly without Internet Explorer's presence.

In cross-examination, Microsoft attorney Steven Holley repeatedly tried to corner Weadock into stating that Internet Explorer and Windows 95 are one product.

Holley asked if Weadock could identify, from a list of more that 220 files, the files Microsoft should instruct OEMs to remove in order to be in compliance with the court's order. Weadock identified "iexplore.exe," the executable file associated with Internet Explorer.

"What other files should Microsoft give OEMs the option to remove?" asked Holley. "I don't feel comfortable saying," replied Weadock. "I couldn't draw a box around the files that constitute IE."

Holley continued his questioning on what specific files Weadock thinks make up Internet Explorer, to no avail. "I can't cite specific C code or give you a list of files that make up IE. Some are shared," said Weadock.

Judge Jackson eventually interjected Holley's questioning, saying "the witness has said several times that he cannot do that [say where IE ends and Windows 95 begins], and I think you have tested the limits."

In making its case today, Microsoft said federal attorneys have filed contradictory documents with the court. In one instance, the company said the government wanted all IE files removed; in another filing, it said regulators essentially wanted only the IE browser icon hidden from the desktop.

Attorneys for Microsoft called David Cole, a Microsoft vice president who oversaw the development of Windows 95, to explain what files and Windows functions were deleted when users run the add/delete utility in Windows 95 to remove Internet Explorer 3.0.

Cole stated that Microsoft "designed Internet Explorer to be part of Windows 95" and that it is difficult to separate the two. He also stated that running the add/remove utility will not actually remove Internet Explorer, only the obvious ways to access the Internet.

Cole's testimony is slated to continue tomorrow, along with the DOJ's cross-examination.

The case originated when the Justice Department filed an enforcement action against Microsoft last October, alleging that it violated a 1995 consent decree prohibiting the company from tying one product with the sale of another. Judge Jackson issued a preliminary injunction in December that prevented Microsoft from requiring computer manufacturers to carry Explorer with Windows 95.

Microsoft's attorneys say the company has removed all the IE files in question, as the government has requested. They argued that the burden is now on the Justice Department to prove that Microsoft has violated the "clear provision of the injunction," which they said the DOJ would not be able to show.

Jackson, who could rule from the bench or issue a written opinion after the two-day hearing wraps up, is prohibited from modifying his order while it is on appeal. Microsoft maintains that Jackson can do nothing because it is following his order, even if it results in a broken version of Windows 95.

Reuters contributed to this report.