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Microsoft Appeals Injunction; Claims Court Went Overboard

Reiterates that Justice Department didn%squott convince court that company had violated original consent decree.

By Brian McWilliams, PCWorld   

At a news conference today, Microsoft%squots general counsel Bill Neukom said that Judge Thomas Penfield Jackson made %dquotnumerous serious errors%dquot in issuing the injunction, which ordered Microsoft to stop requiring PC makers to include Internet Explorer on their Windows 95 machines.

One of the judge%squots errors, according to Neukom, was to unilaterally expand the case outside the bounds of the Department of Justice%squots petition. That petition, filed in October, asked the court to hold Microsoft in contempt of the 1995 consent decree that forbade it from leveraging its operating system monopoly into other application areas.

As Neukom describes it: %dquotThe government has to prove contempt by clear and convincing evidence of a violation of a clear and unambiguous term of the consent decree. The government was unable to do that to the satisfaction of the judge, and accordingly the judge denied the government%squots petition for contempt. However, the court proceeded on its own initiative to treat the case as thought it was something more, a case brought under the Sherman Act for tying violations.%dquot

Microsoft said it filed the appeal this morning in the federal court of appeals for the District of Columbia circuit. The company said the court will appoint a three-judge panel to hear the matter. No hearing dates have been set yet, but Microsoft said it has asked for an expeditious hearing.

In the meantime, the company said it will comply with the preliminary injunction, and today it outlined its strategy for doing so. Microsoft VP Brad Chase said the company has sent a letter to every PC maker that licenses Windows 95 informing them that they can continue to ship the full Windows 95 product, including IE3; ship Windows 95 but remove all IE-related files; or ship the original August 1995 Windows 95a retail release with Internet Explorer version 1.

Chase pointed out that removing IE3 from Windows 95 leaves something to be desired: %dquotUnfortunately, when you take out all of those files, you%squotre left with a version of Windows 95 that doesn%squott boot.%dquot

Microsoft said PC makers can safely remove IE1 without breaking other operating system features.

Today%squots announcement does little to clear up questions about the injunction%squots impact on Windows 98; Microsoft shipped the third beta of Windows 98 to testers on Monday. The judge%squots order said the injunction applies to %dquotany Microsoft personal computer operating system ... including Windows 95 or any successor version.%dquot

But Chase said the company nonetheless is moving full steam ahead on Windows 98. %dquotThe implication of this for Windows 98 is not something we%squotve figured out completely ... but we%squotre moving forward with Windows 98 for a Q2 release.%dquot

A spokesperson for the U.S. Department of Justice said the government is still reviewing Microsoft%squots appeal and had no comment by news time today.