Judge in no mood for Microsoft quibbles at appeal hearing

Microsoft went to court to justify its response to an injunction forcing the unbundling of Internet Explorer from Windows 95 yesterday, but quickly found out that the judge was in no mood to argue.

The software supplier had been ordered by federal Judge Thomas Penfield Jackson to explain its reaction to his 11 December order to seperate the browser from the operating system.

Jackson took immediate exception when Microsoft attorney Richard Urowsky claimed the firm had reviewed government briefs when allegedly complying with the injunction.

"Why should Microsoft be the one held in contempt of the court's order when it is doing exactly as the court ordered?" he demanded."The Department of Justice is being disingenuous. It should have known what it was asking for when it asked for removal of IE.?

The judge interrupted: "What the government requested is not the same as what I ordered." When Urowsky countered with the retort of "I beg to differ with you.", Jackson put him in his place by insisting: "It is my language and my language alone that is at issue here."

When Urowsky insisted that the wording of the injunction was too vague and left room for interpretation, Jackson snapped: "Once you discovered that the government said you were not in compliance, did you give any thought as to what you could do? Did you give any thought to asking for guidance from the court?''

Justice Department attorney Phillip Malone said Microsoft could have told PC makers how to use the Add/Remove utility to remove the browser but instead offered them either an outdated version of Windows 95 or a version that does not work properly. "Microsoft, through its actions, defied rather than complied with that order," he said. "We will establish that there is nothing unique about IE. If one uses the delete utility, there is no harm to the operating system."

The Justice Department called an expert witness in the shape of Glenn Weadock, president of Denver-based Independent Software and author of Bulletproofing Windows 95. He testified that it is simple to install and uninstall IE, although under cross examination admitted that if he were to delete all the files of IE 3.0, this would "break Windows."

But Microsoft insisted that IE cannot simply be uninstalled. David Cole, vice president in charge of Internet at Microsoft, said: "It is very difficult to separate out the IE 3.0 files from the operating system because we tested them in an integrated fashion.It essentially removes your ability to create an Internet account and several other functions such as e-mail because it removed the Internet Wizard Connection."

Jackson however lost patience when Microsoft attornies tried repeatedly to get Weadock to define where IE ends and Windows 95 begins. ?The witness has said several times that he cannot do that,? he said. ?I think you have tested the limits."

The hearing continues Wednesday, but it is not clear whether Jackson will rule from the bench or issue a written opinion.He is not allowed to modify his order while it is on appeal.

Meanwhile the prospect of another government investigation loomed when the Fair Trade Commission of Japan raided Microsoft?s Tokyo offices.

The FTCJ's probe concerns the company's decision to bundle Word with Excel spreadsheet in a bid to compete with a similar offering from Japan?s leading software firm Justsystem. This would, according to the FTCJ, leave Microsoft in violation of section 19 of the Japanese anti-trust act.

Microsoft associate general counsel Brad Smith said: "It was the clear focus of the FTCJ's review today to examine any document that pertained to the competition between Microsoft and Justsystem.We've seen Microsoft doing somewhat better in the word-processing market against a longtime market leader."

The European Union and South Korea have already launched their own investigations. The EU is probing Microsoft?s contracts with Internet service providers and the distribution of IE while South KOrea wants information on the planned integration of Windows 98 and Internet Explorer.

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