Judge Wary Of Microsoft Arguments Software Giant Suffers Setback In Browser Case

U.S. District Judge Thomas Penfield Jackson sharply criticized key arguments presented by Microsoft Corp. in its landmark antitrust struggle with the U.S. Justice Department.

On three occasions during Microsoft’s opening statement at a hearing Tuesday, Jackson challenged the company’s focus on wording used by the Justice Department in its bid for a contempt citation of the company. Instead, Jackson said, the arguments should focus on his Dec. 11 order restraining Microsoft marketing practices.

“It is my language, and my language alone, which is at issue here,” Jackson said.

The Justice Department charges Microsoft is violating Jackson’s order, which told Microsoft that it couldn’t require personal computer makers to install Internet Explorer if they want to use its Windows 95 operating system.

Microsoft responded to that decision by giving computer makers two new options, including the right to strip all Internet Explorer files from Windows 95. Although that step disables the entire computer, Microsoft said it’s what the Justice Department demanded. The government later shifted its position, Microsoft charges.

Jackson Tuesday suggested he wouldn’t let Microsoft buttress its case by pointing to any Justice Department inconsistencies.

“As has been said, consistency is the hobgoblin of little minds,” Jackson said. “And I bring you back to my language.”

Microsoft argues it is complying with the specific language of Jackson’s order.

“It is the government, not Microsoft, that is the cause of any confusion in the mind of the court or in the view of the public,” Microsoft lawyer Richard Urowsky said.

Government lawyers want Microsoft held in contempt for allegedly defying Jackson’s order. The government is seeking $1 million in fines for each day Microsoft remains in contempt of court.

In the hearing, which continues today, each side can call one witness. The Justice Department called Glenn E. Weadock, president of Denver-based computer consulting company Independent Software Inc.

While questioning Weadock, the government’s attorney focused on ways computer users could access the Internet by using Internet Explorer. With the help of a videotaped display, Weadock showed four different paths to the Internet, all of which were no longer accessible when Windows 95’s add/remove function was used to delete the Explorer browser from the system.

Microsoft plans to present testimony from David Cole, a company executive overseeing development of Internet Explorer.