Microsoft Lashes Out At Justice Department Software Giant Contends Government’s Demands Could Turn Court Fight Over Browser Into ‘Farce’

Microsoft Corp. Tuesday accused the Justice Department of “stunning changes of position” that threaten to make a “farce” of a court fight about the software company’s strategy for marketing the Internet Explorer browser software.

Microsoft insisted in a court filing that it has complied in good faith with a federal judge’s Dec. 11 order that said the company must give computer manufacturers the option of removing Internet Explorer software from the Windows 95 personal computer operating system.

The Justice Department’s bid to make Microsoft come up with new ways to remove the browser - after learning that a computer won’t work if the program is simply deleted - proves Microsoft’s argument that the browser is an essential part of Windows 95 that shouldn’t be viewed as a separate product, the company said.

“We have followed both the spirit and the letter of the court’s preliminary injunction,” said William Neukom, Microsoft’s senior vice president for law and corporate affairs. “Now that the DoJ understands the implications of its prior position, it wants to play by a new set of rules.”

In court filings Tuesday, Microsoft also challenged U.S. District Judge Thomas Penfield Jackson’s appointment of a Harvard law professor and high-technology legal expert to act as a special court official, or special master, in the case. The professor, Lawrence Lessig, is to make recommendations whether Microsoft violated a 1995 antitrust settlement by making computer manufacturers install Internet Explorer as a condition for getting permission to use the ubiquitous Windows 95 operating system.

The trial court fight currently centers on the Justice Department’s argument that Microsoft should come up with a better way to let computer makers remove the Internet browser from Windows 95 and should be fined $1 million a day if it doesn’t comply.

Microsoft responded to the judge’s Dec. 11 order by giving computer manufacturers two new options for installing Windows 95 - either of which will cripple or undermine a PC’s performance. The software industry leader repeated its insistence that it gave computer manufacturers permission to do exactly what the Department of Justice asked for, and what the court ordered.

“The DoJ in the span of two weeks has changed its mind completely,” Microsoft said in its court filing.

After arguing that computer makers should be allowed to delete from Windows 95 all the program files included in the retail version of Internet Explorer, the government now realizes that a computer won’t work if that’s done, Microsoft said. “The DoJ now wants the court to order Microsoft to put the vast majority of Internet Explorer back into the DoJ-designed version of Windows 95,” the company’s court brief said.

The government, Microsoft said, is trying to hold Microsoft in contempt “for doing precisely what the DoJ requested and the court ordered.”

Justice Department spokesman Michael Gordon said the government still thinks Microsoft isn’t trying to comply in good faith with the judge’s order. The government’s formal response to the latest Microsoft motion is to be filed Monday.