The judge overseeing the landmark Microsoft Corp. antitrust trial is expected to rule on a government motion that could settle, once and for all, one of the most bitterly fought disputes of the entire trial -- whether or not Microsoft's browser is truly "inseparable" from the rest of the Windows operating system.
The turning point follows a series of filings made since Monday, when the Justice Department asked Judge Thomas Penfield Jackson to force Microsoft to surrender a spreadsheet allegedly detailing which files within Windows 98 belong to the browser, which to the rest of the operating system, and which perform tasks for both. Microsoft, which had originally agreed to surrender the document, is resisting DoJ petitions by claiming protection under rules of relevance and attorney-client privilege. The Justice Department filed its final motion on the matter Wednesday.
The list is important since much of the government's case rests on traditional "tying" claims. In previous decisions, courts have ruled against monopolists that forced customers to take one product as a condition of buying another in which they held a monopoly. In Microsoft's case, the government says it forces customers to buy its Internet Explorer browser as part of the larger Windows operating system which dominates PC markets worldwide.
Yet Microsoft claims there can be no "tying" claims, since the browser and operating system are inextricably linked. Though company officials have repeatedly challenged government witnesses to identify which software files belong to the browser and which do not, those same witnesses have demurred.
Instead, witnesses such as Dr. Edward Felten of Princeton University have merely disabled the browser. Felten earlier argued that identifying which of the millions of lines in Windows belong only to the browser is a waste of time if, as far as the user is concerned, there is no browser at all. In any case, he testified, simple logic dictated what Microsoft put together it could take apart.
The timing of the motion could not be more opportune for the government.
In 139 pages of forcefully worded testimony released Wednesday, Microsoft Senior Vice President James Allchin took Felten and the government to task for their attempts to suggest Microsoft's browser was more a product separate from the operating system than a part of it. To prove his claim that IE is as much a part of Windows as a hand is part of the human body, Allchin detailed a litany of problems he said arose when Felten's ran an IE "removal program" against Windows to "separate" the two. The program, Allchin said:
- makes Web pages load three times slower when users install new programs such as America Online, Intuit Inc.'s Quicken and Lotus Notes;
- completely disables the Windows desktop when users tried to get to "Active Desktop" Internet channels placed in the Windows operating system;
- renders useless an automatic "Windows update" service that keeps users' systems up-to-date;
- in a matter of hours will let other programs use up all available memory in a computer whether they need it or not.
The latest flurry of filings, ironically, came from back-and-forth over Allchin's testimony. When government attorneys first deposed Allchin on the Felten program Sept. 29. Allchin told the lawyers he believed there were problems with the program, but did not know precisely what they were, as testing was not complete. Since DoJ attorneys had gone to Allchin chiefly for his views on integration of the browser and operating system, they asked Judge Jackson for another opportunity to speak with Allchin earlier this month. Jackson granted that request, which resulted in a final interview with Allchin last Monday.
In the course of discovery related to Allchin's pre-trial testimony, antitrust officials came across references to tests performed by Microsoft employee Daniel D'Souza. D'Souza's work, which was summarised on a spreadsheet, purportedly showed which files within one of four larger "libraries" that make up IE belonged to the browser and which did not.
Neither side would comment on Wednesday's filing.
Take me to the DoJ/Microsoft page.