New details in the battle between Microsoft and the US Department of Justice came to light on Monday, offering some of the most interesting looks so far into the evidence the government has gathered against the software giant.
US District Court Judge Thomas Penfield Jackson's Memorandum and Order, which delayed the trial until Oct. 15 and denied the majority of Microsoft's request for a summary judgement, also cited numerous government exhibits and depositions that shed light on the evidence the DoJ and 20 have used as the basis for their charges. Much of the information and exhibits have been sealed from the public and, thus far, have not been released.
One example: the threat to Microsoft's operating system posed by joining browser and Java technologies. According to Jackson's ruling, Microsoft Chairman and CEO Bill Gates on May 26, 1995 wrote in an e-mail that "the Netscape/Java combination threatens to "commoditise' the operating system."
Jackson cited other government exhibits showing that following a 1997 meeting with Gates, Microsoft's Ben Slivka described Java as "the biggest threat to Microsoft," writing in an e-mail to Gates that "clearly the work the Java team is doing has hit a raw nerve with you." Jackson also cited a memo by Microsoft Vice President Jeff Raikes that says, "the situation is threatening our operating system and desktop applications share at a fundamental level" and "Netscape pollution must be eradicated."
Other evidence mentioned in the ruling claims that Gates was the alleged leader in the "charge to wrest control of Java from Sun" and cites an August 25, 1997 e-mail sent by Microsoft's Tod Nielsen to Bill Gates saying, "We are just proactively trying to put obstacles in Sun's path and get anyone who wants to write in Java to use [Microsoft's] J/Direct." Jackson noted that the government's case hinges on "contemporaneous statements of Microsoft executives" to support its claims.
For example, Jackson pointed to an e-mail sent by Moshe Dunie, a Microsoft vice president, to Gates and several other executives: "The stunning insight is this: To make [consumers] switch away from Netscape, we need to make them to upgrade [sic] to [Windows 98] . . . [W]e can leverage these assets to convert the Navigator installed base and eclipse Netscape's browser market share leadership. But if we rely on IE4 alone to achieve this, we will fail."
Microsoft executive Christian Wildfeuer apparently agreed. In an e-mail sent on Feb. 24, 1997, he wrote: "It seems clear that it will be very hard to increase browser market share on the merits of IE 4 alone. It will be more important to leverage the [operating system] asset to make people use IE instead of Navigator."
Later in the ruling, Jackson said there is still a considerable amount of dispute about Microsoft's control over the boot-up screen as well as its contracts with Internet service providers and content providers to warrant a trial. For example, Jackson cited depositions from executives at telecommunications companies such as MCI and AT&T that state how they would have liked to remain browser neutral, but the only way that they could be part of the Microsoft Internet Connection Wizard was to promote Internet Explorer as their default browser. Citing a deposition by Microsoft Vice President Brad Silverberg, Microsoft told AT&T during its negotiations: "You want to be part of the Windows box, you're going to have to do something special for us . . . If you want that preferential treatment from us . . . we're going to want something very extraordinary from you." Jackson also mentioned how the events of a June 1995 meeting between Microsoft and Netscape are still in dispute.
In his ruling, Jackson said: "While Microsoft vigorously disputes plaintiffs' account of the June 21, 1995 meeting with Netscape, plaintiffs' evidence is sufficient to create a genuine dispute. Chris Jones, Microsoft's then Group Manager for Internet Explorer, participated in that meeting. In deposition testimony, Mr. Jones indicated that Microsoft 'absolutely' intended to persuade Netscape not to compete and offered as a quid pro quo the prospect of Microsoft's staying out of browser development for non-Windows platforms."
Elsewhere in his ruling, Jackson cited other depositions and documents used by the government to bolster its claims that Microsoft's control over the boot-up screen is something the OEMs would like to alter and have asked to do so. Among the OEMs mentioned that have asked and been denied are Micron Electronics, Gateway and Hewlett-Packard. The trial delay is the second in the case thus far. Originally schedule to begin on Sept. 8, the start date was pushed back until Sept. 23 last month.
Jackson did throw out one of the charges made by the states against Microsoft, saying a monopoly leveraging charge was inconsistent with the plain text of the Sherman Antitrust Act and Supreme Court pronouncements.