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The ghost of memos past reappears as further delays loom

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The latest skirmishing in the Microsoft antitrust case has resulted in a deal between Microsoft and the Department of Justice (DoJ) to put the trial back by another three weeks, until 15 October. The adversaries both spoke to Judge Thomas Penfield Jackson about this on Friday, but he has yet to agree. According to the judge’s original schedule, the trial should have begun last week, but it has been beset by arguments and changes of tack by both parties. Microsoft has been complaining about ‘new evidence’ from the DoJ which it says takes the case in an entirely different direction, while Microsoft itself has caused some confusion by subpoenaing a clutch of adversaries in an attempt to show anti-competitive collusion in the Unix marketplace. But although further delay is probably in Microsoft’s interest, given that the company originally wanted a much longer period to prepare its case, Friday wasn’t entirely a good day for the company, which saw the DoJ’s attack move towards Bill Gates himself. DoJ lawyer David Boies presented a note by Gates from a January 1996 meeting with AOL boss Steve Case, which indicated that AOL would standardise on Internet Explorer in exchange for “favourable placement in the operating system.” This was a key victory for AOL, which had been battling feverishly to blunt the impact of Microsoft’s rival online system, MSN, since the launch of Windows 95 a few months before. MSN had originally been intended as the preferred mechanism for Windows 95 users to get online, and had itself attracted the DoJ’s interest because of this the previous year. By giving AOL parity, or something close to parity, Gates could therefore be seen as sacrificing his own online plans in order to get the largest online system in the world on-side. This is what Boies argues happened: "They were even willing to put a bullet in the head of something they had a lot of hope for," he said. Boies also pointed to a Gates email responding to a suggestion that Office programs be designed to work as well with Netscape Navigator as with Internet Explorer: “That’s wrong – I disagree with that,” is the wording Gates used, but what this meant is still open to some interpretation. Gates is clearly not saying (not here, anyway) that his programmers should go out and make sure Navigator doesn’t work with Office, and could argue with some justification that it’s no business of his to ensure a rival product works better. But Microsoft’s control of the operating system, and its integration of Explorer in the operating system, gives it some responsibility to provide companies like Netscape with the information they need to make their products work with Microsoft’s products. Where Microsoft’s responsibilities in this area begin and end has always been murky and fluid, even to Microsoft, so it’s a useful point of attack for the DoJ. ®

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