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One of the exhibits in the previous stages of the Microsoft antitrust trial included an email from one Chris Jones, recommending to Bill Gates that the binding of IE into Windows should be such that users would find running rival browsers "a jolting experience." At the time many people, not least of them the Department of Justice, seemed to think that this and other associated exhibits were all about the anticompetitive tying of IE into Windows in order to destroy Netscape. But apparently not - MS Windows exec Chris, taking the stand yesterday, put forward an explanation of almost patentable novelty.

What he meant, he said, was that the experience would be jolting for good reasons if it occurred because of the "great innovations" that integration of IE brought to Windows. So presumably you could think about the new versions of IE Microsoft was designing as being truly wondrous, and that users would therefore find use of the comparatively stone age rival products truly unpleasant.

One could almost convince onself that Jones has a point here; but not quite. As far as we can make out he did not yesterday specifically exclude the possibility that users might get their jolt even if the innovations associated with integration turned out not to deliver truly wondrous software after all. Nor is it obvious why, if this and similar emails were really talking about building great software, there seems a marked deficit of emails saying something to the effect of 'we're going to build great software so the users don't want to use Navigator.'

There are, on the other hand, emails from senior execs that say that IE wasn't at the time good enough to win the browser war on its own, and recommending that the Windows franchise should be leveraged to build IE's market share.

On the broader issue of Microsoft breaking other people's software Jones almost had another point too. He objects to the States' proposed requirement that Microsoft shouldn't be allowed to interfere with rivals' software without good cause. This requirement might strike you as remarkably reasonable, so Jones should be commended for his resourcefulness in finding an objection to it which is also, in its way, quite reasonable.

Essentially, if Microsoft's rivals have the ability to object to changes Microsoft makes on the basis that it interferes with their own software, and hence disadvantages them, they are going to abuse this right. They're going to make it up. Every time Microsoft makes a change that they can argue is somewhere in the general vicinity of their own turf, they're going to complain about it. He's right, isn't he? Are these nice, generous people, or are they going to seize every possible weapon there is in their war against Microsoft?

But before we wholeheartedly agree that the ability of rivals to put forward spurious an inaccurate instances of "without good cause" we should maybe rewind a little to what these current trial sessions are actually about. Microsoft has been found guilty of various anticompetitive activities, and the court is now considering what measures should be imposed in order to stop the company from doing it again. Left to its own devices to define "good cause," Microsoft has abused its position, and spurious justification cuts both ways. There is possibly an argument that this part of the States' proposal will cause wrangles if implemented, but under the circumstances that is not an automatic justification for tossing it out.

Another interesting point was brought up by States' attorney Kevin Hodges, who established that the proposed MS-DoJ settlement had less teeth to it than appears at first glance. Under this deal PC manufacturers will have the right to install rival companies' software, but it's still feasible for Microsoft to bar them from running Netscape when the computer is first turned on. Jones seems to have argued that as IE was a part of Windows, Microsoft didn't have to give OEMs the right to run Netscape. At time of writing the full transcript of the session wasn't yet available, so we're currently unable to dig deeper into this eccentric argument. However, as he seems to be arguing that the levelling of the playing field doesn't entirely apply if a component is a part of Windows, we may have another bid for a 'get out of jail free' here. More once we've checked the details. ®

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