MS/DoJ: Judge impatient with Microsoft again

The judge in Microsoft's antitrust trial erupted in impatience yesterday at the company's cross-examination of a government witness, as the two sides grappled once again over the issue of browser-operating system integration.

Microsoft attorney David Heiner was pressing Edward Felten, a computer scientist from Princeton University, about exactly which files constitute the Internet Explorer Web browser, when US District Court Judge Thomas Penfield Jackson broke in.

"You are playing word games, he has told you at least a dozen times and maybe more that there is code in each of the files, some of which is unrelated to browser functionality ... to continue this [line of questioning] in the hopes that he will make a slip of the lip I don't think is appropriate cross-examination," Jackson said. "To pursue this line of questioning simply appears to be inviting him to make a careless mistake."

Felten maintained in his testimony that Microsoft could easily remove Web browsing capabilities from its Windows 98 operating system and give consumers the choice of using a rival browser.

Felten testified that he and two graduate students had designed a prototype software program to suppress the functionality of the Internet Explorer 4.0 browser from Win 98. He also said there were no technological reasons why Microsoft had to incorporate the browser into the operating system.

The government's lead attorney, David Boies, called the testimony "devastating." He said outside the courthouse that the government's technological witnesses have maintained that "there is absolutely no technological justification for what Microsoft did" in combining the browser and operating system.

"They did it, purely and simply, to prevent customer choice," Boies said. "There is no plausible efficiency justification for what Microsoft has done."

But Microsoft attorney David Heiner forced Felten to admit under cross examination that he could not physically remove all the Internet Explorer files from the software code without significantly impairing the Windows operating system - a contention that Microsoft says proves the company's point that the two products are integrated.

Microsoft spokesman Mark Murray said the company chose to build Web browsing capabilities into the operating system as a design decision and that Felten's suggestion to disable those functions makes no sense for consumers. "You cannot remove the Web browsing software in Windows 98," Murray said. He said of the Felten program to remove code and suppress those functions, "it's impossible to see any possible consumer benefit to that".

Heiner stepped Felten through several dynamically-linked library files in Win98 that have numerous functions for both Web browsing and operating system functions.

Felten testified that the distinction was unimportant. He said that a number of Win 98 software modules are made up of many functions, some Web browsing functions, some operating system functions and some that provide totally different functions. While his prototype program removes some Web browsing files, he said it does not go into shared libraries to remove certain functions. He simply suppresses those functions.

The day started with a half-hour videotape of Felten demonstrating the uninstall program that he wrote with the help of graduate students. The program, which Felten said is composed of 600 lines of code, is designed to remove IE from Windows.

Felten remained firm under questioning from Microsoft's trial attorney. "The idea here is not to take away the choice of a user to use Internet Explorer 4; it's to restore choice to use an alternative Web browser," Felten said.

"I know of no reason why Microsoft was technically compelled to design the product that way," Felten said regarding the lack of an uninstall program that Microsoft wrote for IE.

The issue is central to the case. The government alleges that Microsoft is bundling the browser -- a separate program -- into Windows, and that this constitutes an illegal "tying" of one product to another, monopoly product. The government case was dealt a setback in June when the Court of Appeals ruled that Microsoft could ship Windows 95 with its browser and warned that the courts should not interfere with product design.

One issue the two sides did agree on was that the government's portion of the case should conclude in mid-January.

The government expects to call two more witnesses after the break. Lead Microsoft trial lawyer John Warden said he expected testimony of the last two government witnesses to conclude January 12.

In a remark criticising the way Microsoft attorneys have been cross-examining witnesses, Boies told Jackson, "I agree with Mr. Warden. I don't think we are going to finish before the 12th. Given the way they cross examine I don't think we're going to finish two witnesses in a week."

After the government concludes its side of the case, Microsoft gets a turn to call its own roster of 12 witnesses to the stand. After Microsoft finishes its case, each side will get a chance to call two more rebuttal witnesses each.

Shortly after Jackson's criticism, Microsoft's attorney finished his cross examination of Felten. This afternoon, the government will redirect the witness, questioning him further.