Microsoft's response to Justice Department antitrust allegations can be boiled down to this: The government knew years ago about the company's plans to begin to merge Internet browsing capability into its Windows operating system. And if that wasn't a problem when the company and government came to terms in 1995 on a consent decree to keep Microsoft honest in the marketplace, why is it a problem now?
In documents filed with the the US District Court in Washington, DC, last week and made public today, the company takes the position the goverment knew of a plan to build "Internet technologies" into Windows from subpoenaed documents dating to December 1993. Those documents mark the beginning of an evolutionary process, the company argues, since access to information - be it on a floppy disk in a local C: drive or a remote server in Finland - is a primary operating system role.
"One of the most important functions of any operating system is to provide access to information stores, whether those information stores are local - such as hard disk drives, floppy disk drives, tape backup drives or CD-ROM drives - or remote - such as servers on local and wide area networks," Microsoft said in a memorandum summarizing its response to the 20 October Justice Department allegations. For Windows 95 to provide access to the Internet so any Windows application can access it "makes perfect sense," the memo to US District Court Judge Thomas Penfield Jackson added.
"Nothing could be more natural or logical or incremental for an OS publisher to continue to make available to users the ability for users to get acess to information," William Neukom, Microsoft's senior vice president for law and corporate affairs, said in a telephone briefing following the release of the court documents.
To prove that the government knew of these logical plans for the operating system well before the company entered its 1995 consent decree, the company points to "large numbers of documents from Microsoft in late 1993 and early 1994," documents Microsoft says were subpoenaed by the government in the lead-up to the consent decree the two parties would eventually sign.
"These documents detailed Microsoft's plans to make Internet-related technologies an integral part of Chicago," Microsoft said, using the public pre-release code-name for Windows 95. The memo then refers to an attached declaration from Steven Sinofsky, currently general manager of Microsoft's office product unit.
The declaration refers to email written in December 1993 that Sinofsky says is an exchange among a group of Microsoft managers discussing commercial applications of the Internet and suggesting the company create "a series of integrated products" through "a formal subproduct architecture - call it Microsoft's Internet Vision or something - that crosses existing product boundaries."
Sinofsky also cites a January 1994 memo by one James Allard, entitled, "Windows: The Next Killer Application on the Internet," which was reportedly sent to the leaders of the team developing Chicago. The memo stated a goal of "establish[ing] Windows as an Internet-ready system," Sinofsky's declaration says. Sinofsky relates that Allard foresaw the benefits of integrating Internet-related technologies and noted that Windows Explorer's local file system was a "natural fit" with FTP and gopher on the Net, "which present users with file system-like organization of rich documents." Allard also reportedly noted that "Web viewers are not totally unlike our WinHelp or Multimedia viewer tools."
One of the points in the memo hinting at features beyond mere Internet connectivity is Allard's purported conclusion that when Windows supports Internet protocols, the Internet becomes a "natural extension of the Windows end-user experience, and the favored way to explore." Sinofsky argues in his declaration that "[Allard] explained that '[t]he enormous momentum generated by our integration efforts and increased presence feeds the Windows foothold in the Internet, as users begin to take advantage of the native system features to manage and navigate the infostructure.'"
From these and other affidavits provided to the court, Microsoft says that one way or another, "the DOJ was on notice more than three years ago that Microsoft intended to make Windows 95 itself a vehicle for accessing information on the Internet."
In a conference call following the briefing today, Brad Chase, Microsoft's vice president of marketing for Internet products, said that Explorer is so integrated "it is fundamental to Windows 95." And with Explorer's "true Web integration" with the Windows desktop and the cross-over role of IE4 from Web browser to local disk browser, this case can certainly be made.
But could the Department of Justice have been expected to see the implications of this kind of integration? Even if prosecutors understood and bought into Microsoft's early discussions on integration, does that mean they must equate those discussions with what has evolved into Microsoft's Internet Explorer 4.0 - an integrated desktop in which the casual user would be hard-pressed to distinguish a separate browser component.
After all, building in compatibility with TCP protocol of the Internet is one form of providing "access" to Internet-based information. Extending it to include full-fledged Web browsing capabilities is another.
In response to this question, Microsoft says that exactly what the concept of integration might have meant in 1993 is not at issue.
"I don't think the question in this legal proceeding is in what ways, technically, certain functionality is integrated into a product," Neukom said in an interview. "What we're saying plainly in our papers is the government understood from information it subpoenaed that we started the process of planning for and designing and developing Internet technologies to be an integrated part of Windows 95 way back in the fall of 1993."
Sticking to its theme of the day, Microsoft is using the simple concept of information access as an apparent justification for the integration of any and all functionality and features that grow out of this broad, basic role. "It's not just that Internet Explorer technologies are an appropriately integrated part of Windows 95. It's just the old access to information theme, which has been central to operating systems for 16 years," Neukom said.
"This is simply extending that capability - access to information - to a new source."
