Microsoft defends response to court order Judge's appointment of a master in browser case is also challenged

December 24, 1997|By BLOOMBERG NEWS

WASHINGTON -- Microsoft Corp. yesterday accused the Justice Department of "stunning changes of position" that threaten to make a "farce" of a court fight about the software company's strategy for marketing the Internet Explorer browser software.

Microsoft insisted in a court filing that it has complied in good faith with a federal judge's Dec. 11 order that said the company must give computer manufacturers the option of removing Internet Explorer software from the Windows 95 personal computer operating system.

The Justice Department's bid to make Microsoft come up with new ways to remove the browser -- after learning that a computer won't work properly if the program is simply deleted -- proves Microsoft's argument that the browser is an essential part of Windows 95 that shouldn't be viewed as a separate product, the company said.

"We have followed both the spirit and the letter of the court's preliminary injunction," said William Neukom, Microsoft's senior vice president for law and corporate affairs. "Now that the DoJ understands the implications of its prior position, it wants to play by a new set of rules."

Microsoft also challenged U.S. District Judge Thomas Penfield Jackson's appointment of a Harvard law professor and high-technology legal expert to act as a special court official, or special master, in the case. The professor, Lawrence Lessig, is to make recommendations on whether Microsoft violated a 1995 antitrust settlement by making computer manufacturers install Internet Explorer as a condition for getting permission to use the ubiquitous Windows 95 operating system.

Microsoft says Lessig was given some authority to draw legal and factual conclusions that only the judge himself should make. The company also questions whether the judge followed proper procedures in appointing Lessig.

The trial court fight currently centers on the Justice Department's argument that Microsoft should come up with a better way to let computer makers remove the Internet browser from Windows 95 and should be fined $1 million a day if it doesn't comply.

Microsoft responded to the judge's Dec. 11 order by giving computer manufacturers two new options for installing Windows -- either of which will cripple or undermine a PC's performance. The software industry leader repeated its insistence that it gave computer manufacturers permission to do exactly what the Department of Justice asked for, and what the court ordered.

The government, Microsoft argued, is trying to hold Microsoft in contempt "for doing precisely what the DoJ requested and the court ordered."

While the fight involves efforts to remove Internet Explorer 3.0 from Windows 95, Microsoft says technical problems are greater with the newest browser, Internet Explorer 4.0, which more seamlessly melds the functions.

Justice Department spokesman Michael Gordon said yesterday that the government thinks Microsoft isn't trying to comply with the judge's order. The government's formal response to the latest Microsoft motion is to be filed Monday.

Microsoft shares fell $3.6875 to close at $123.3125.

Pub Date: 12/24/97

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