By BRIT HUME and T.R. REID
In a Washington, D.C. courtroom, Judge Thomas Penfield Jackson has been giving the world a perfect illustration of why a little bit of knowledge is a dangerous thing as he seeks to adjudicate the legal battle between the Justice Department and Microsoft Corp., the software giant.
As this was written, Jackson was trying to decide whether to hold Microsoft in contempt of court for doing exactly what he earlier ordered the company to do.
The case was brought by the Justice Department, which claimed that Microsoft had violated a 1995 agreement with the government that it would not force computer makers who acquire Microsoft Windows 95 for inclusion with new models to accept also “other” Microsoft products. Because Microsoft now includes its Web browser, Internet Explorer, as part of Windows 95, and would not let vendors have Windows 95 without it, the Justice Department said the company had violated the agreement.
Microsoft argued that Internet Explorer is now an integral part of Windows 95 and not an “other” product. But the government would have none of it. Joel Klein, chief of the Justice Department’s antitrust division, said, “You have an operating system. You have a browser.” The two, he insisted, are separate, distinct and easily severed without harming Windows 95.
Judge Jackson declined to fine Microsoft for its practice, at least for now, but he did order the company to begin offering its customers a version of Windows 95 without “the software code that Microsoft itself now separately distributes at retail as ‘Internet Explorer.’ ” In other words, all the files that come with Internet Explorer had to be removed.
There was a major problem with the order. If all the Internet Explorer files were removed from the current version of Windows 95, the operating system would not work properly. That’s in part because the Web browsing capability is also used by other programs, Intuit’s Quicken for example, as well as the software provided to subscribers of America Online. Microsoft appealed the order, but in the meantime began offering computer makers a choice.
They could have Windows 95 with the Internet Explorer code removed, which meant a partially crippled version. They could have the original August 1995 version of Windows 95, which had no Internet Explorer code in it. Or they could continue to take the product with Internet Explorer. What happened next was truly remarkable.
The Justice Department ran back to court and demanded that Microsoft be held in contempt for offering a choice that was no choice at all, but merely a scheme to keep on doing what it had been doing. No company in its right mind, the department contended, would take either the broken or outdated version of Windows 95, so the only option was to take it with Internet Explorer. Microsoft, said the department, was making a “mockery” of the court.
This was the same Justice Department that had earlier argued, over Microsoft’s strenuous disagreement, that Internet Explorer could easily and harmlessly be removed from Windows 95. Now the department was complaining that Microsoft, by removing Internet Explorer, was disabling Windows 95. Judge Jackson’s reaction was to have his clerk use the “Add/Remove” utility provided with Windows 95 to get rid of Internet Explorer and found that doing so left the rest of the operating system intact.
It turns out, however, that using the “Add/Remove” utility only gets rid of a few Internet Explorer files, leaving the rest of the browser in place. Therefore, argued Microsoft, doing that did not comply with the judge’s order to remove “the software code that Microsoft itself now separately distributes at retail as ‘Internet Explorer.’ ”
The judge, evidently embarrassed, demanded of a Microsoft witness, “I entered an order that required that you distribute a product that would not work. Is that what you’re telling me?”
“In plain English, yes,” said the witness.
Microsoft may be right, but that does not mean it will win, at least anytime soon. Judges do not take kindly to being made to look foolish. Judge Jackson clearly did not know what he was doing when he entered his order, which was based heavily on language supplied by the Justice Department, which does not know what it’s doing either.
Consider Joel Klein’s statement that, “You have an operating system. You have a browser.” You do, indeed, but events have shown that they are far more closely intertwined than the government thought or argued. The department got the judge to order Microsoft to sever Internet Explorer from Windows 95 and then tried to have the company held in contempt when it did so.
This might be a good time for the department to reconsider its actions, but there is no sign of that.
T.R. Reid is Rocky Mountain bureau chief of the Washington Post. Brit Hume is managing editor of Fox News in Washington. You can reach them in care of the Washington Post Writers Group, 1150 15th St., Washington D.C. 20071-9200, or you can e-mail T.R. Reid at [email protected], or Brit Hume at [email protected].
