REDMOND, Wash, December 23, 1997 — In court papers filed today, Microsoft said the Justice Department’s latest motion before U.S. District Court Judge Thomas Penfield Jackson shows that Internet Explorer is an integrated feature of the Windows 95 operating system, contrary to what the DOJ has been saying for the last two months.
Just three weeks ago, the Justice Department argued in court that Internet Explorer 3.0 is not an integrated feature of Windows 95, that the operating system would work fine without Internet Explorer, and that Microsoft should be required to license Windows 95 to computer manufacturers that way. Although Microsoft had previously argued in legal papers and in court that Windows 95 won’t work without Internet Explorer 3.0, the company complied with a court order requiring it to make such an option available to computer manufacturers.
“Now, the DOJ has apparently recognized that Internet Explorer is an important part of Windows 95, and is arguing that Microsoft should be required to make Windows 95 available with nearly all of Internet Explorer added back into the product, but hidden from customers so that the feature is hard to use,”
said William H. Neukom, senior vice president for law and corporate affairs at Microsoft.
“Microsoft has done precisely what the DOJ requested and what the Court ordered. We have followed both the spirit and the letter of the court’s preliminary injunction. Now that the DOJ understands the implications of its prior position, it wants to play by a new set of rules.”
In papers filed with the court on November 20, the DOJ told the court that Windows 95 would function without Internet Explorer 3.0, and that Microsoft should be required to offer computer manufacturers (OEMs) the option of installing Windows, free of Internet Explorer 3.0 in
“all”
respects. In response, Microsoft explained that the latest versions of Windows 95 would not work under such a scenario, and that removing any part of Internet Explorer would degrade various browser and non-browser aspects of the operating system. Nevertheless, the court issued the order requested by the DOJ.
Microsoft has complied with that order, but now the DOJ wants Microsoft to offer OEMs a version of Windows 95 with all Internet Explorer 3.0 files intact, but minus the browser icon
“and other aspects of the browser that are visible to users or allow users to access it,”
according to the government’s motion. Microsoft will introduce evidence at a January 13 hearing that such an order would be as unworkable as the first order sought by the DOJ.
“Removing the icon from the desktop is like putting a plate over a car radio. It is still a radio and it is still part of the car, but now it is very difficult to see and use”
according to Microsoft’s legal memorandum.
“The DOJ – in a truly breathtaking reversal of positions – now argues that Microsoft should be held in civil contempt for doing precisely what the DOJ requested and what the Court ordered…The DOJ is essentially admitting that the files that make up Internet Explorer 3.0 are an integral part of Windows 95 and cannot be removed without impairing the performance of the operating system. With that concession, the DOJ confirms what Microsoft has been telling the court all along…”
In its memorandum, Microsoft also said that because it has appealed the December 11 preliminary injunction, the District Court no longer has jurisdiction to alter or extend its order.
“Given the undisputed fact that Microsoft has done nothing to prevent Netscape and other suppliers of Web browsing software from creating products that run flawlessly on Windows 95, there is absolutely no basis for the DOJ’s unprecedented attempt to interfere with Microsoft’s ability to develop new products with features and functionality that appeal to consumers,”
said the Microsoft memorandum.
“The DOJ’s suggestion that Microsoft should break Windows 95 a little bit by making it difficult or impossible for end users to take advantage of the Internet-related features of the operating system is profoundly anti-consumer and could advance no conceivable goals of the antitrust laws.”
On Tuesday, Microsoft filed with the U.S. Court of Appeals its reply in support of its motion for expedited treatment of its appeal from the preliminary injunction. On Monday, the government had filed a response in opposition to such expedited treatment.
“We are disappointed by the government’s attempts to delay resolution of these issues,”
said Neukom.
“We think it is important to resolve these matters as quickly as possible.”
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