Microsoft and the US Justice Department (DoJ) squared up to one another in court on Friday, but came away none the wiser about the outcome of their dispute when the judge decided to take the case under advisement.<[p> US District Judge Thomas Penfield Jackson heard testimony from both parties in the case which sees the software supplier accused of breaching a 1995 consent decree and engaging in anti-competitive behaviour by forcing PC manufacturers to bundle Internet Explorer with their machines as part of Windows95.
Justice Department lawyer Philip Malone highlighted the vast array of written testimony and documentary evidence in the case, claiming that there were very few facts that were actually in dispute. The case hinged, he said, on the interpretation of those facts. "The fundamental issues in this case are not factual. The real question is whose interpretation of the consent decree is correct, Microsoft's or the government's,?" he said. "This case appears to be awash in vapour."
Under questioning from the judge, Malone conceded that Microsoft could, under certain circumstances, sell IE and Windows95 as an integrated product without breaching the terms of the consent decree. But he argued the fact that the two products were also sold as separate products invalidated these circumstances.
Microsoft's lawyer Richard Urowski stuck to the company party line, insisting that IE and Windows have been integrated since the signing of the consent decree and as such the Justice Department had no case to bring. "Integrated products are not subject to the prohibition of the consent decree," he insisted. "What the government may not do is challenge the integrated product under the consent decree."
He dismissed Judge Jackson's question as to whether IE could be considered as a separate product, arguing that the software available through retail outlets was only an upgrade to an existing integrated product.
The DOJ warned Jackson that, while Microsoft is not forcing OEMs to bundle IE 4.0 now, it would do so from next February. Microsoft argued that, by the end of the year, some 70 to 75 per cent of all PCs would come with IE 4.0.
Urowsky admitted there were grounds to challenge Microsoft's actions, but said any such action would have to come under the terms of the Sherman Antitrust Act. This would, noted the judge, require the Justice Department to amend its complaint. "The DOJ would be utterly at liberty, but that's not the path they have chosen," said Urowski.
Jackson closed the first day of the hearing by declaring that the case should be considered to be submitted and under advisement. No date for a ruling was given.
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