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RE: Hearing - 12/5/97
Assume for a moment that Judge Jackson has unbiased competent programming expertise at his disposal and that they conclude the following:
That the MS OEM release (OSr2) is in fact a new release of '95 with features and code that subtly tie an internet browser to the operating environment.
That given the fact this same browser is also available as a stand alone program for other operating environments and releases of '95, the notion is raised that coding mechanisms in the current OEM release could have allowed, or can allow, the browser to operate in the OEM release environment as a stand alone program or not at all if one wished.
That no technical violation of the consent decree is apparent upon examining the new OEM release. In fact, the browser has been technically "integrated" with it and they are free to make any programmatic demands on OEM's who install the system to protect the integrity of the release.
I wonder if Judge Jackson has the power to look beyond the language and look at the purpose of the language, perhaps concluding that this activity, while it may not be a strict technical violation of the language in the decree, was intentionally designed to violate, or has the ultimate effect of violating the spirit of the decree and the clear underlying intentions of it's language, thereby allowing the DOJ's motion?
_P. A. Petricone
From: Declan McCullagh[SMTP:email@example.com]
Sent: December 06, 1997 10:17 AM
Cc: Multiple recipients of list
Subject: Re: Hearing - 12/5/97
At 10:01 -0500 12/6/97, P.A. Petricone wrote:
>One reporter's view;
>Has anyone had the chance to digest this or other accounts of the DOJ v
>Microsoft hearing before Judge Jackson?
Date: Fri, 5 Dec 1997 15:33:32 -0800 (PST)
From: Declan McCullagh <firstname.lastname@example.org>
Subject: FC: Microsoft and DoJ attorneys battle in Federal court today
X-FC-URL: Fight-Censorship is at http://www.eff.org/~declan/fc/
Microsoft vs. DOJ Update
Microsoft finally had its day (or at least two hours) in court this
afternoon. Its team of lawyers tried to fend off accusations that
Microsoft unfairly used its operating system's popularity to
force-feed Internet Explorer to computer makers. Federal judge Thomas
Penfield Jackson zeroed in on whether or not the browser is, in fact,
part of Windows 95. "Are you not selling Windows 95 and Internet
Explorer separately?" he asked. Not to computer manufacturers,
carefully replied Microsoft's attorney, who said that the evidence
proves the two products "obviously are" integrated. (For the judge to
rule that Microsoft is violating a 1995 agreement, Justice Department
lawyers first have to convince him that Internet Explorer and Windows
95 are two seperate products, which they tried to do today by waving
around a shrinkwrapped copy of Internet Explorer 4.0.) The hearing in
Washington, D.C., federal district court highlighted two wildly
different views: Microsoft claims the Justice Department is picking a
fight where none really should exist. But the government's antitrust
lawyers said today they're fighting to stop the world's largest
software company from "misusing its Windows power" to squash its
competitors. Both sides are going to have to wait a while: Judge
Jackson left the courtroom today without ruling on the case. --By