Microsoft unleashes last-ditch defence: Part II

Part II: Tying vs bolting
Written by Mary Jo Foley, Senior Contributing Editor

Throughout the day, Boies, Warden and Jackson sparred over the definition of technology tying, which is at the heart of the case. Microsoft has argued that Internet Explorer and Windows 98 were integrated during the design phase and that the subsequent "bundle" benefited consumers in terms of ease of use and greater distribution of application programming interfaces. The government claims that Microsoft "bolted on" Internet Explorer in order to grow its browser market share.

Jackson asked Warden if he was saying, "If you license my OS, you have to license my browser?" He added that government attorney Boies had said consumers can derive the same benefits by using Internet Explorer and Windows separately. Warden responded that in June 1988, the US Court of Appeals found Microsoft had behaved within the law in terms of integrating its products. "The use of integration is not the use of monopoly power," Warden told the judge. He added that any operating system vendor would be within its rights to integrate a browser into its OS.

Warden attempted to use the metaphor of The New York Times as a single, integrated newspaper to make his point. Jackson offered his own counter-example of "integrated" tractor trailers, whose main benefit would be "increased dissemination of trailers".

At the end of the day, Warden and Boies offered rebuttals to each other's respective arguments. Boies told the court that the government isn't arguing against Microsoft's right to compete vigorously, but against "the means by which Microsoft took (its) actions."

He reiterated the government's claims that Microsoft has violated Section 2 of the Sherman Antitrust Act on a number of counts. Warden, for his part, reiterated Microsoft's argument that its actions in the browser market "produced lower prices, better products and greater distribution. No consumer has been deprived of any choice in browsers."

He added that Microsoft's intent was "to deny Netscape the ability to monopolise the browser market".

When Warden attempted to invoke a comparison between choice of browsers and automobiles, Jackson interjected, "But GM (General Motors) has competitors." Warden responded: "We have companies who want to become competitors."

Warden concluded: "A lot of nothing doesn't add up to something. The government has a lot of suppositions. That's not proof of causation."

"After two and a half years, it's still been a pleasure, gentlemen," said Jackson at the conclusion of the oral arguments. Jackson called Microsoft and DoJ representatives into his chambers for a brief consultation, and the formal trial phase of the case ended.

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