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Court argues over validity of browser integration

The DoJ may be moving up a blind alley in trying to separate browser and OS

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Glenn Weadock, President of Independent Software of Golden, Colorado, was given the expected rough time in cross-examination by attorney Richard C Pepperman II for Microsoft. The initial focus was on trying to discredit Weadock by suggesting, for example, that he had insufficient technical knowledge to give meaningful opinions. This was not a problem, since although Weadock does not have graduate degrees, neither do most Microsoft executives (other than Bill Gates, who has an honorary doctorate from a private Dutch university that would seem to be hoping for a handout). Weadock is an engineering graduate from Stanford and a Microsoft Certified Professional (or MCP as they are affectionately known). His 16 years experience as a jobbing consultant is certainly solid enough, and he has written 11 books. Microsoft's response to Weadock's written testimony criticises him for not being a Windows programmer, but this is lawyer talk: none of the senior Microsoft execs, including Gates, are Windows programmers either. Pepperman then challenged that Weadock had never written an operating system, but he probably hadn't constructed a motor car either, so the argument was inappropriate as a means of excluding his testimony. Pepperman accused Weadock of tailoring his opinions to suit the government's case. Weadock replied that he had made it a condition of being retained that he would not be bound by any preconceptions. It was standard lawyer stuff. Weadock had surveyed some 13 major businesses to determine their views about Microsoft products, and especially browsers. He admitted that that "I'm not building anything here that that is intended to be a statistical cross-sampling of American corporate opinion. The bulk of [the] testimony is based on nearly two decades in this business." Pepperman tried to discredit the organisations that Weadock cited - such as Federal Express (where Jim Barksdale of Netscape had worked) and Saber Holding (a competitor of Microsoft's Expedia), but it was uphill work. Much of the afternoon was taken up with Pepperman probing at Weadock's view of Microsoft's intentions when IE was merged with Windows. Weadock made the unwelcome observation that Microsoft could easily have made it possible for users to avoid using the browser buried in Windows 98, saying that "Microsoft... has great leeway in what they combine and how they combine it." Weadock said that Microsoft's claim that IE and Windows cannot be separated is fallacious, adding that software should be viewed as a set of features rather than a fixed number of lines of code, since developers can commingle unrelated lines of code in a single file and call it integrated. Weadock claimed that commingling did not necessarily deliver a benefit to consumers. Pepperman suggested to Weadock that "Using 'commingling' rather than integration makes the example sound more pernicious" to which Weadock replied that he thought there were many delightful examples of commingling. Laughter in court. Weadock said that "No-one outside Microsoft has ever viewed a Web browser as being part of an operating system," but the important issue concerned Microsoft's strenuous efforts to lock-out competing browsers, and the doubtful legality of how this was done. Weadock commented that there were "actual and potential" disadvantages in integrating the browser. Weadock made the point that although some users may like IE to be integrated into the operating system, users did not have a choice. It is unfortunate that the DoJ is persisting in this tack - that integration is wrong. As the history of the industry shows, integration is the norm, and always has been. The subsuming of DOS utilities like memory management and compression from the 1980s provides a model that has not been found to be illegal. Weadock did give the facts in his testimony as to how Microsoft had broken its own rules for not making it possible to use Add/Remove for IE in Windows 95, or to make it possible to remove components as it had in the case of networking components. Microsoft's assertion that there is "complete flexibility in making applications and operating system decisions" is untrue. Arguments about the position of any dividing line between operating systems and applications are pointless, as there are no natural boundaries as in some physical processes. "It becomes very difficult to draw a specific line at [the] boundary between operating system and application," according to Scott Vesey, Web browser manager at Boeing, in a remark quoted by Weadock. For its part, Microsoft is leaning on the decision by the court of appeals in June that the integration of IE was allowed, providing there were consumer benefits. So far, the DoJ has not focussed sufficiently on proving the consumer disadvantages like the disk real estate aspect and slower-than-necessary performance that result if a non-Microsoft browser is preferred. A weakness of Microsoft's case is the deviousness with which it has woven IE into Windows. Close examination shows that Microsoft integrated the products to make it as difficult as possible for any judicial order for separation to be achievable. This was certainly not a benefit to consumers. A problem for Microsoft is its inability to prove that its users really prefer IE pre-installed when it is very hard for a consumer to make a choice of pre-installed browsers because Microsoft is garrotting the OEMs. With browser usage split close to 50-50 between Microsoft and Netscape, Microsoft's claim about the "vast majority of customers" preferring IE is a blatant distortion of the true situation. Nonetheless, it is in the area of consumer choice that the DoJ has a better case, with the evidence that Microsoft tried to stamp out Netscape looking very strong. Microsoft's PR response suggests an alternative list of its customers to those quizzed by Weadock, which Microsoft claims would have given a different view. Here Microsoft uses the naive argument that only its own software is the correct decision by an organisation, so that any user preferring Netscape is wrong. This may be good approach to fire up junior salesmen, but it is very unsophisticated. For once, Microsoft's PR is failing to develop any adult arguments (and there are some) to justify its approach. The legal problem with browser tying is to prove why it was done, since the way in which it was done is too technical for the court. Here the DoJ has been reasonably successful with the evidence so far, but the remedies may prove inadequate and too late. The fundamental legal problem for the DoJ is still that it has not brought the right case, and that it is on less-firm legal ground in trying to extend its case during the trial, because this strengthens the case for an appeal. Weadock's testimony does provide a useful base for the DoJ to demonstrate that Microsoft leveraged its dominant Windows position to incorporate IE - this is monopolisation, and it is illegal. Whether the courts will eventually agree is a political matter - and political judicial opinion in the higher courts favours Microsoft. Weadock's cross-examination was not the stuff of headlines, but it was necessary for a non-vendor to state the case. Weadock's cross-examination will continue today, after which there will be a rebuttal examination by the DoJ legal team. In some ways Weadock's appearance was a technical warm-up for the court. John Soyring from IBM is the next witness, and is more likely to be a heavyweight. Soyring played a key role during IBM's OS/2 days (shurely 'deadweight? - Ed). He is expected to be followed by Frederick Warren-Boulton, an economist. ® Complete Register trial coverage

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