The New York Times
January 29, 1999
Microsoft Told to Turn Over a Key Internal Document
By AMY HARMON
WASHINGTON -- The federal judge in the Microsoft antitrust case Thursday ordered the company to turn over an internal document to the Justice Department that government lawyers said could undermine one of the software giant's defenses.
The government lawyers said the document supported their contention that Microsoft's Internet browser could be identified as a distinct product from its Windows operating system. Microsoft officials have maintained that the browser and the operating system cannot be separated.
The Justice Department and 19 states have accused Microsoft of illegally using its monopoly in the Windows operating system to preserve its market dominance and gain advantages in other business areas.
The document at issue is a spreadsheet that apparently breaks down a key file in Windows 98 into three categories: functions only for the browser, functions only for Windows and functions for both.
The spreadsheet was generated as part of a test performed by David D'Souza, a Microsoft engineer, at the behest of James E. Allchin, a senior vice president in charge of the technical development of Windows.
According to e-mail records provided to the Justice Department by Microsoft, Allchin was trying to refute the testimony of Dr. Edward Felten, a Princeton University computer science expert who wrote a program to remove the browser from Windows and argued that including the browser in the operating system was "inefficient."
Microsoft officials said Thursday that the document would serve to support their contention that the majority of the functions were shared. But the company sought to withhold the spreadsheet and retract the e-mail between Allchin and D'Souza on the grounds that neither fell within the scope of Judge Thomas Penfield Jackson's original order, which compelled the company to turn over documents related to Microsoft's testing of Felten's program.
When D'Souza performed the test, Felten's program was not installed on his computer, Microsoft officials said.
In his e-mail to Allchin detailing the results, D'Souza noted that they could be used to distinguish between the code that is shared and that which is used solely for browsing functions. Therefore, he wrote, it "may not be useful."
But Microsoft officials argue that how much code is actually shared is beside the point.
"Whether a piece of software or some functionality can be removed from a software product does not mean it was not a useful, integrated part of the product in the first place," Allchin said in his testimony this week. "My hand can be surgically removed from my body, but it was certainly a well-integrated part of my body before that surgery."
The government's position on the specific issue of tying the browser to the operating system is constrained by a federal appeals court ruling last June that Microsoft had the right to bundle its browser with Windows. So the tussle over the spreadsheet is more about tarnishing Microsoft's credibility than proving the browser can be separated.
"This is something Microsoft said it couldn't do," said David Boies, the Justice Department's lead attorney. "And it turns out they have done it. It underscores the point we've been making that Microsoft had no plausible reason to weld the whole Internet Explorer into the operating system."
Boies is expected to ask Allchin about the spreadsheet on Monday, when the executive takes the stand for cross-examination.