Are things finally starting to look up for Microsoft? On Tuesday, judges in an appeal hearing appeared to lend a friendly ear to the company?s arguments.
The week had not started too well for Microsoft. Bill Gates spent most of his Comdex keynote defending his company?s right to innovate, rather than plugging his latest products. And when he did do a short demo of the upcoming Windows 98, the system crashed.
But on Tuesday, by most accounts, things went unexpectedly well. A judge panel consisting of three judges, Raymond Randolph, Patricia Wald and Stephen Williams, must rule on Microsoft?s appeal against a lower court?s injunction preventing it forcing Windows 95 licensees to take the Internet Explorer browser as well.
The judges in the US Court of Appeals for the District of Columbia - who may not make a ruling for three months - showed some doubt that the DoJ arguments were consistent. One, Stephen Williams, said: "It's very hard to see any advantage between offering a computer with two browsers and a computer with one".
Microsoft attorney Richard Urowsky defended Microsoft?s right to force PC makers to include IE.
The lower court judge, Thomas Penfield Jackson, in December imposed a preliminary injunction, forcing Microsoft to offer PC makers the option of shipping PCs without the browser (or with the browser hidden from the user, as Microsoft prefers to say). The judge also asked a 'special master', Lawrence Lessig, to look into the matter. Microsoft has claimed Lessig is biased against the company.
Microsoft lawyers reiterated their arguments that the company should be free to enhance its products without government interference and that the browser cannot be separated from the operating system without damaging its functionality and so harming users.
It also claimed Penfield's decision was "riddled" with procedural irregularities - often obscure points of law that were debated at far greater length than the issue itself. Central to these was Microsoft's claim that the DoJ had never filed a separate request for a preliminary injunction, and so the judge should not have imposed one.
The DoJ responds that Microsoft is violating the 1995 consent decree that forbade it to require Windows 95 licensees to license other Microsoft products. However, that decree did allow MS to develop "integrated" products to enhance the operating system. Microsoft claims IE is such a product, but the DoJ denies this because the software giant can and does sell IE separately.
According to reports of the hearing, the Judges appeared unconvinced by the DoJ arguments that Internet Explorer is not a part of the Windows operating system.
On Monday at Comdex Spring, Bill Gates outlined the future evolution of the Windows operating system. He said simplifying the user interface was an important part of that. Gates argued that using the same interface (Internet Explorer) to navigate the hard disk, the internet and the system?s Help files in Windows 98 was a key step in simplifying PC use. Future versions of Windows will drive this integration even further, he announced, eliminating the difference between file names and Web page URLs.
Microsoft is planning to ship Windows 98 on 25 June. Some observers are still expecting the DoJ to file an antitrust complaint before that time, to prevent the launch. But time is running out: the Windows 98 code is expected to go to PC manufacturers in a few weeks.
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