RE: Hearing - 12/5/97

["P.A. Petricone" <pap@tiac.net>]

  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:declan@pathfinder.com]
  Sent: 	December 06, 1997 10:17 AM
  To: 	pap@tiac.net
  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;
  >
  >http://www5.zdnet.com/zdnn/content/inwo/1205/260964.html
  >
  >Has anyone had the chance to digest this or other accounts of the DOJ v
  >Microsoft hearing before Judge Jackson?
  
  Yes.
  
  -Declan
  
  =========
  
  Date: Fri, 5 Dec 1997 15:33:32 -0800 (PST)
  From: Declan McCullagh <declan@well.com>
  To: fight-censorship-announce@vorlon.mit.edu
  Subject: FC: Microsoft and DoJ attorneys battle in Federal court today
  X-FC-URL: Fight-Censorship is at http://www.eff.org/~declan/fc/
  
  ************
  
  http://cgi.pathfinder.com/netly/afternoon/0,1012,1616,00.html
  
  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
     Declan McCullagh/Washington