December 15, 1998
Microsoft Accused of Sabotaging Witness's Computer Program
Princeton University computer-science expert Monday accused the Microsoft Corporation in Federal court of sabotaging a computer program he had written to demonstrate a key point in the Government's antitrust suit against the software giant.
By JOEL BRINKLEY
Judge Thomas Penfield Jackson, who is trying the case in District Court, became visibly angry at the idea that Microsoft might have taken advantage of information it acquired through the court to sabotage the Government's case.
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At the Justice Department's request, the expert witness, Edward W. Felten, devised a small program last Spring that was able to extricate Microsoft's Internet Explorer Web browsing software from its Windows 98 operating system -- something Microsoft had said was impossible.
The question is central to the case. The Government contends that Microsoft illegally tied Internet Explorer to its industry-standard Windows operating system to stifle competition in the market for Web browsers, the software used to navigate the World Wide Web.
Microsoft asserts that its browser is not a separate product but an integrated feature of its operating system that cannot be removed.
Testifying as a Government witness today, Dr. Felton said several computers on which Internet Explorer had been removed with his "prototype removal program" worked smoothly through the summer, even when used to visit a special Microsoft Web page for updates to Windows 98.
Even beyond that incident, Microsoft had a frustrating day in court.
But then in September, Dr. Felten testified, he gave Microsoft a copy of the source code for his removal program as part of a pre-trial discovery request. After that, he said, "Microsoft modified the software" behind the company's update Web page "to make it incompatible with computers" that had been altered by his removal program.
At that, Judge Jackson's eyes widened, and he leaned toward the witness as he asked: "Are you telling me that as part of discovery, you gave them this code in September, whereupon it appears that there were product changes by Microsoft?" Dr. Felten affirmed that, and the judge glowered at the Microsoft lawyers' table.
Later, outside the courtroom, Microsoft told reporters that there was an innocent explanation: When the company put an early beta, or test version, of its yet-to-be released Internet Explorer 5.0 on the Web site early this month, the program had been inadvertently set up to be downloaded into a directory that Dr. Felten's program had deleted.
"This was not a change we have made to undermine the removal program of the Government," a Microsoft spokesman, Mark Murray, said.
But even beyond that incident, Microsoft had a frustrating day in court. Dr. Felten. the most assertive, combative witness who has taken the stand since the trial began two months ago, turned every question back on his questioner and gave not an inch of ground.
The cross-examination was so wearying and, apparently, fruitless, that Microsoft abandoned it early this afternoon, even though the company had expected to continue questioning Dr. Felten will into Tuesday, at least.
Justice Department officials were jubilant, and an official associated with the Government's case explained Microsoft's decision to finish early this way: "If you are punching away at someone, and he punches back harder every time, why would you want to keep punching him?"
But John Warden, Microsoft's lead lawyer, said: "This witness didn't really have much to say. He said ten times that Microsoft could have designed Windows 98 this way or that." But that, Warden suggested, was a meaningless assertion, sort of like "saying you could build this courthouse with six steps instead of three."
During the cross-examination of Dr. Felten, a Microsoft lawyer, David Heiner, asserted that the witness had not really removed Internet Explorer from Windows at all; he had simply removed the user's access to it. "Isn't it true," Heiner asked, "that your version of Windows is 99.9 percent as large as the Microsoft version because you really didn't take anything out?"
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That may be true, Dr. Felten acknowledged, but he added that it was also irrelevant. The code he left behind is used by other programs, not just Internet Explorer, and so it made no sense to classify it as part of Internet Explorer.
Heiner kept trying to get Dr. Felten to identify which lines of code belonged to Internet Explorer. Dr. Felten refused, at one point saying: "No that's not the right characterization. It doesn't make sense to say that just because files are used by a program, it means that they are a part of the program."
Finally the judge cut Heiner off, saying, "You're playing word games. He's told you a dozen times" that code can have multiple functions. "To continue to pursue this I don't think is appropriate cross-examination. You are simply inviting him to make a careless mistake."
At the end of the day, Warden declared that it was the Government that had a bad day.
"This witness was unable, when asked, to enumerate what code constitutes the Web browser, or Internet Explorer, that we are alleged to have illegally tied to Windows," he said. "It's now been a year since we demanded that the Government do that, and they still have not done that."
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