MS appeals against injunction

The DoJ has dismissed Microsoft's argument, insisting restrictions are needed.

Microsoft has issued an appeal against a US federal court injunctionre needed. which bans the bundling of Internet Explorer with Windows 95, warning that it will not only be software suppliers that suffer if the ruling is not quickly overturned, but the US economy as well.

In papers filed recently with the Circuit Court of Appeals in Washington, DC, Microsoft argued that Judge Thomas Jackson's ruling last week cast doubt on whether it would be able to proceed with its planned release of Windows 98 with Internet Explorer, bundled as part of the package.

Microsoft warned that the uncertainty could have serious repercussions on the stock market at large. 'Indeed, significant segments of the US economy may be affected by doubt surrounding the release of Windows 98,' according to official court documents.

'It is no exaggeration to say that the public generally has a significant interest in the prompt disposition of this appeal.'

But the Department of Justice (DoJ) responded by asking a federal court to hold Microsoft in contempt of the earlier order by offering a series of options to OEMs, including a non-Internet Explorer version of Windows 95 alongside the existing version. The DoJ accused Microsoft of trying to evade the will of the court.

According to documents filed, the DoJ insisted: 'Microsoft's naked attempt to defeat the purpose of the court order and to further its litigation strategy is an affront to the court's authority. Microsoft has cynically acted as if the preliminary injunction permits it to perpetuate the very (condition) that the court enjoined.'

The DoJ had requested a $1 million a day fine to be imposed on the supplier, claiming that it breached a 1995 consent decree forbidding anti-competitive practices, which the DoJ said included forcing PC makers to ship Internet Explorer as part of the operating system.

But Judge Jackson passed this aspect of the case over to a legal expert until May and issued a temporary injunction forbidding Microsoft from forcing PC suppliers to carry Internet Explorer.

Microsoft contends in its appeal that this decision went beyond the original request made by the DoJ. It complained formally that it was not given an opportunity by Judge Jackson to present its own evidence on the unbundling issue rather than the alleged violation of the consent decree.

'The district court did not give Microsoft notice that it was even considering a preliminary injunction and Microsoft had no reason to anticipate such unorthodox action,' the company claimed.

'As a result of this complete lack of notice, Microsoft had no opportunity to argue that a preliminary injunction as wholly inappropriate as a procedural matter.'

The injunction 'radically altered the status quo', according to Microsoft, by forcing it to provide a stripped-down version of Windows 95 without Internet Explorer, a product which it said earlier this week would be 'substandard' and may not work.

The DoJ filing dismisses this argument, insisting that the uninstall feature in some versions of Windows 95 allows users to deactivate Internet Explorer without harming anything. The DoJ argues that this feature should be included in all versions of Windows.

Joel Klein, assistant attorney general for antitrust law, said: 'Microsoft has gone from tying its products to tying the hands of its vendors. The more Microsoft continues this practice, the more consumers are harmed.'

The DoJ wants two restrictions to be placed on Microsoft. The first would require it to offer the most current version of Windows 95 that has the Internet Explorer icon and other visible internet features removed. The second would force Microsoft to give the DoJ 30 days notice before the commercial release of any operating system or internet browsing products, including upgrades to existing products, and to spell out exactly how the products comply with Judge Jackson's order.

The battle between Microsoft and the DoJ also gained speed when the software giant attempted to remove Harvard University law professor, Lawrence Lessig, who was used to review the lawsuit against Microsoft. The company claimed that Lessig harboured a bias against software.