Microsoft will ship what it admits is a "sub-standard" version of Windows 95 while it launches an appeal against the "dangerous precedent" of last week?s injunction outlawing the bundling of Internet Explorer with the browser.
Judge Thomas Jackson last week imposed a preliminary injunction against Microsoft in response to a complaint by the US Justice Department, forbidding the software supplier from forcing PC makers to ship IE as a bundled part of Windows 95.
Microsoft?s reponse on Monday was to announce that it was going to obey the injunction to the letter and would now insist that every last IE file is removed from Windows 95 while the ruling is appealed.
The company admited that this will mean selling on a sub-standard product, but insisted that the government is to blame. Brad Chase, Microsoft's vice president of Internet marketing and developer relations, stormed: "By having to comply with the Judge's order, we are left with an operating system that does not boot.?
In a statement posted on the Microsoft Web site, the company elaborated: ?By stripping out IE files from Windows 95, the Government is forcing Microsoft to produce... essentially a product that will not work and is asking us to compromise a brand we have spent millions of hours and over $1.5 billion in research and development creating.?
Microsoft has written to all Windows 95 licencees and outlined the options which they face until the appeal is heard. There are three main stratgies they can adopt. Firstly they can continue to ship Windows 95 with IE. Alternatively, they can ship a version without IE, but this option will result in a product which Microsoft says will not work properly.
The third option is to license a new version of Windows 95 equivalent to the retail release from 1995 which had no IE code in it. This will work, says Microsoft, although its functionality will considerably lessened.
William Neukom, vice president for legal affairs at Microsoft,explained: "Microsoft has to work on two versions of Windows 95 - one the way customers want it, and another the way our competitors and the Department of Justice wants it. One has great Internet features, and the second will have those features stripped out of it."
But OEMs will not be allowed to strip out IE files themselves. ?We do not allow computer manufacturers to pick and choose what parts of Windows they want to install," warned Microsoft. "We believe that we are going beyond the strict interpretation of the court?s order by providing to OEMs a functional version of Windows 95 without IE files.?
Announcing the decision to appeal against the injunction by Judge Thomas Jackson, Neukom claimed that the ruling threatened the right of every US company to innovate and define what is included in its own products. ?This order puts the Government into software design,? he said.
The company is basing its legal case on the argument that Jackson should have dismissed a complaint by the Justice Department that Microsoft is in contempt of a 1995 consent decree. This, according to the Department, should prevent the supplier from forcing PC makers to ship IE by bundling the browser with Windows 95.
Microsoft argues that Jackson?s injunction has been enforced based not on the consent decree, but on general anti-trust law. This, claims the supplier, is inappropriate to the nature of the complaint.
"The matter before the court was whether Microsoft could be held in contempt for violating a consent decree entered in 1995," said Neukom. "The court denied the Justice Department?s petition for contempt. The case should have ended there.
?But on its own initiative, the court proceeded to treat the matter as a tying case, and, without giving Microsoft notice or an opportunity to defend itself, issued a preliminary injunction. It is inappropriate for the court to unilaterally expand the case beyond the scope of the government's petition."
Chase made no commitments about what would or would not be included with the forthcoming Windows 98. "We are not prevented from building Windows 98,? he noted. ?But as far as options for licensing or how the ruling will impact that, we have not had a chance to examine those issues yet. We are going to move full steam ahead with Windows 98 and cross whatever bridge when we come to it."
But he concluded: "A modern version of Windows 98 without Internet Explorer is an oxymoron.?
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