Eric Bennett's notes on the Heiner memo

[James Love <love@cptech.org>]

A few notes from Eric Bennett from Cornell on the Heiner memo,
which MS confirms is real.  Jamie

-------------------------------
Subject: Re: Dave Heiner MEMO
   Date: Wed, 10 Mar 1999 18:17:43 -0500
  From: "Eric M. Bennett" <ericb@pobox.com>
    To: love@cptech.org


James Love wrote:

>The following rather long memo, apparently from Dave Heiner,
>Senior Corporate Attorney,  Microsoft Law and Corporate Affairs,
>was just forwarded to me. It provides the MS talking points on
>the antitrust case.

There are a lot of half-truths in here, mixed occasionally with some
rather
interesting distortions of reality to the point of falsehood.

Here are a couple of my favorite parts:


>-----Original Message-----
>Sent:     Wednesday, March 03, 1999 11:01 PM
>Subject:  DOJ Case: What's Happening
>
[snip]
>But
>who can doubt the benefits for Microsoft and its customers of developing
>innovative Internet client software?  And who can doubt the benefits of
>integrating such client software tightly into Windows?

Translation: Why are we right?  Because we are.  Nobody can doubt that
we are.

And of course many would dispute the underlying premises of these
statements, most notably that IE is "innovative".


>Third, and most importantly, remember that press coverage was quite
>negative
>in connection with both of our prior antitrust cases.  In both cases,
>however, we won in court, and did so by unanimous decisions of the Court
>of
>Appeals.  (Appeals are heard by panels of three judges.)

The Court of Appeals decision in the contempt case was only unanimous on
Jackson's procedural error.  It was not unanimous on the substantive
issues
of the case.


>In late 1994/early 1995, we saw negative press coverage in connection
>with
>Judge Sporkin?s review and ultimate rejection of a proposed "consent
>decree"
>between Microsoft and the Department of Justice.  The Court of Appeals,
>however, unanimously determined that Judge Sporkin erred, and agreed
>with
>Microsoft that he should be disqualified from presiding over the case
>for
>failing to maintain the appearance of impartiality.  (We had been
>criticized
>in the press for arguing that the judge appeared to be biased.)

But the Court of Appeals ruled in favor of the DOJ too!  The DOJ also
appealed Sporkin's decision.  This is a strange case where the DOJ and
Microsoft both won the appeal; Sporkin was the loser.  (Oh yeah...
consumers lost too.)


>     The benefits of Microsoft's integrated design are so plain that the
>government knew it could not challenge them.  Instead, it merely
>established
>that installing Internet Explorer 4.0 on Windows 95 provides many
>(though
>not all) of the Internet-related benefits of Windows 98.  (The
>government
>established this point with great fanfare in court, asking variations on
>the
>same question 19 times.)  Jim explained, of course, that the ability of
>IE
>4
>to provide many of the Internet-related benefits of Windows 98 merely
>reflects the fact that IE 4 was designed as an operating system upgrade,
>which overwrites key system files upon installation.  Ignoring that
>statement of fact, the government argued to the press that Jim's
>testimony
>showed that customers do not benefit from integration because they get
>almost the same benefits if IE 4 is delivered separately.  This
>government
>argument was well-received by the press.
>
>     The government argument is unlikely to fare well in court, however,
>because the identical argument, on identical facts, has already been
>flatly
>rejected by the Court of Appeals.

But the Appeals Court specifically stated that it thought a product was
truly integrated only if the combination of the two products by
Microsoft
provided features that would not be obtained if end-users combined the
two
products themselves.  David Boies specifically addressed this issue in
getting Jim Allchin to admit that there are no such features.


>We will continue to present facts and legal argument to the courts
>concerning the claims asserted against Microsoft.  We are confident that
>upon a proper application of well-established legal principles to the
>facts
>of the case, Microsoft will prevail.

This part reminds me of Apple's famous 1984 commercial:
"Our enemies shall talk themselves to death, and we will bury them with
their own confusion.  We shall prevail!"




--
Eric Bennett ( http://www.pobox.com/~ericb/ )
Department of Chemistry & Chemical Biology, Cornell University
377 Olin Chemistry Lab

A designer knows he has achieved perfection not when there is
nothing left to add, but when there is nothing left to take away.
-  Antoine de Saint-Exup'ery