I realize I am mainly just being obstinate, but I have still got problems with the argument that Microsoft necessarily has to have violated the consent decree. I suppose I am more interested in this as a matter of logic/argument, but in any case..

For there to be the possibility that Microsoft can comply, they must be able to offer a set of options such that some option of the set does not preinstall IE and is meaningful (i.e. the product still works) Or, in language we also used today, there must be some plausible filling of the buckets such that the product still works and there no element of IE preinstalled

To use a very simple analogy.. Imagine I want a yellow apple backfrom you. The set of available options I give you includes a yellow banana, a green apple, and a red apple. No element of the set satisfies the requirement, even though there is yellowness and appleness in the set.

For me to be wrong (and Microsoft in contempt), the elements must be separable (i.e. instead of a request for a yellow apple, a request for yellowness and appleness) Then, option 3 (add/remove) provides a "meaningful" option and option 2 (elements A & B) provides a "no-preinstallation" option

Larry, after class, offered the following competing analogy: Apple marketer can sell 60 apples in one day Apple provider will only sell 100 (no more, no less) Court says you can't require them to take 100 Provider says, ok 100 or 0 -- not meaningful, so they are in contempt Providing option of range from 0-100 would be ok This is closely analogous, as we are dealing here with a set of files numbering 0-100 (or equivalent).

To me, this doesn't change the issue -- it is still whether there must be an option that satifies both the letter of the consent decree (here, 0 files) and the spirit (functionality, requiring > 0 files).

david

-- Anonymous, October 06, 1998

Answers

Removing IE

Forgive me if I repeat anything that was said in class, but I think Microsoft could easily have shipped a product without IE, or allow OEMs to de-install IE, and still have Windows 95 work. As it stands, using the Add/Remove Programs utility, one could remove IE and have no damage to the functionability to IE (as an asside, it also wouldn't harm most programs that "rely" on IE, since in my experience they also accept Navigator if you have that installed). Granted, if done incorrectly, removing IE can "break" Windows, but removing any program incorrectly can do the same thing. For example: a while ago I had a piece of virus scan softwared loaded onto my Windows 95 machine. When I loaded the software, it changed a number of the settings for Windows 95, and deposited files all over my harddrive (much as Microsoft claims IE does, and much as pretty much every program I run does). For various reasons, I decided to delete it. Being the silly person I am, I just dumped the folder containing the program into the trash and erased it. Guess what. It "broke" Windows. I had to then spend time figuring out what the problem was, and how to fix it (which was actually relatively easy, but that's besides the point). So one could technically say that Windows "needed" that software since it "broke" when I deleted it improperly, but I doubt any of us would try to argue that it was an "integrated" product, even if Microsoft had licensed it and throwing it, as is, onto the Windows 95 install disk (unless, of course, you accept the "combined" definition of "integrated," in which case I have a box of "integrated" apples and oranges to sell you). (And even if some of us would buy that it was in fact "integrated," I have a feeling the software manufacturers might take umbrage at that.)

Disclaimer: I happen to be one of those people who just doesn't like the way IE performs, so I have removed it from my computer without adverse effects, which is why I have trouble believing that it would actually cause a problem to have someone else remove it for me. But I've never tried to use Quicken, so I can't say with absolute certainty that *all* programs designed to use portions of IE will run ok on Navigator (but I haven't run across any that don't).

-- Anonymous, October 07, 1998

My tirade

Microsoft could have easily allowed OEMs to de-install the browser portion of IE, but Microsoft didn't feel that it had to allow this option. Microsoft argues that the 14 or so files that get deleted when you "remove" IE via the "Add/Remove Programs" do not include all, or even most, of the IE files. Microsoft's position is that IE includes all operating system files that are internet-enabled or html-enabled, not just the web browser. From Jackson's Dec. 11, 1997 order, at 13: "But Microsoft claims that Internet Explorer offers the operating system substantially more than mere Web browsing capability."

Jackson was repeating Microsoft's claim, but he did not necessarily adopt it as part of his definition of IE, or the part of IE he wanted unbundled. Note that he began the sentence with "But"--this indicates to me that he didn't necessarily agree with Microsoft. Jackson did not specify explicitly anywhere in his order what he considered to be Internet Explorer. Probably he thought that it was premature for him to decide, since this was linked to the "integrated products" question. But he should have made this explicit.

It seems from his wording of the order that he intended to enjoin Microsoft from bundling only the actual web browser, "any Microsoft Internet browser software (including Internet Explorer 3.0, 4.0)." Microsoft is concentrating on the word "any," (as we have done, I think incorrectly) but ignoring the word "browser." Microsoft can't argue that all the new operating system files that the "browser" needs are part of the browser, because, by the same logic, DOS 6.22 would be part of Windows 3.11, OLE would be part of Microsoft Office programs, and so on. And, there are probably files that the "browser" does not need that are included on the IE CDROM. Jackson probably thought he was enjoining just the bundling of the "mere browser." And Microsoft probably knew that, but thought that if they adopted their own tortured technical interpretation of the order they could evade it.

It's too bad that Jackson specified in his order IE by name, "(including Internet Explorer 3.0, 4.0,...)," because, if it had left it out, I think Microsoft's argument that the injunction applied to every file included on the IE 4.0 CDROM would be difficult to accept.

Kim's comment, though, is very interesting, because it illustrates how reasonable people would interpret the order. To almost every computer user, "Internet Explorer" is associated with Microsoft's web browser. Removing IE can be accomplished by Window's "remove" function. To "install" or "preinstall" (actual word used in the order) an application means to copy files to your hard disk so that the application can be succesfully launched. Jackson probably had these definitions in mind. But, he failed to express his understanding explicitly enough so that even Bill Gates could understand.

That brings up a side question that I have. When interpreting an order (not a consent decree) for the purposes of determining whether a party is in contempt, should the judge's intent, or at least a reasonable person's understanding of the judge's intent, have any weight? Should the memorandum part be consulted to discern the intent or meaning, or can the defendant get off by relying on a tortured literal reading?

The real problem with this entire litigation is that the DOJ lawyers and the courts seem to have been woefully technologically unsophisticated. Computers and computer programs are very complex, so engineers make frequent use of abstractions to reduce the conceptual complexity. For example, "files" and "folders" are just abstractions that make it simpler to organize and work with large amounts of data. The end user usually doesn't have to be concerned with how or where the data actually resides. Similarly, what a user might think is a single file might actually be stored as separate files, and what appears as multiple files to the user could be the same file or parts of one single file. A single "file" could be even be stored across multiple real devices (although Windows generally does not allow this). A single hard drive could appear to the user like multiple separate drives, and vice-versa.

A CDROM that is labelled "Microsoft Internet Explorer" ("IE") can contain files, or parts of files, or data, that are not part of IE. "IE" itself is an abstraction as is a "web browser," and Microsoft might define "IE" different in different scenarios, perhaps defining it to encompass more than what most people would consider just a "web browser."

Software is designed using abstractions. There has to be some way to divide up a large project and build on the work of others--you can't start from scratch every time. Steve Wozniak, in the early days of Apple, had to type in manually the byte codes for the operating system every time he turned on an early Apple prototype. This wouldn't be too practical for Windows. Software applications, large and small, are designed heirachically. Large functional blocks are broken down into smaller blocks, and those into smaller blocks, and so on. Sometimes, it's not clear which higher-level block a sub-block belongs in, or even which level in the hierarchy a block belongs to. Microsoft is so big and its products so inter-related that such questions often become an internal political struggle. Gates, in December, 1995, said "We're not forming an internet division. That would be like having an electricity division or a software division." Within 3 months, he changed his mind.

What a software company terms a "product" is just an abstraction for a high-level functional block. Is the product the CDROM? Is it the data on a hard drive? Is each file a separate product? What are the borders of a product? Defining a product for legal purposes by "the files contained on the CDROM" without understanding what each one does is something that only the technologically unsophisticated would do. Certainly, it is a convenient definition. But, it is not always a practical definition. It can be even more problematic to refer to a product by its trade name.

Now, I wouldn't expect most people to know or care about whether there is a difference between "Microsoft Internet browser software" or "Internet Explorer" or the CDROM labelled "Internet Explorer" or the files contained on that CDROM, or those files on their hard drives, or the browser window on their computer screen or the IE icon on their computer's "desktop." (This is a good example of an abstraction that is transparent to the user. In Windows95, what you see on your desktop is what is contained in the "desktop" folder within your "Windows" folder. Most users have little need to know that.) If I wanted to buy IE in a store (if it cost anything), I'd ask for IE or Microsoft's browser and I'd probably walk out of the store with a CDROM which I'd later install on my hard drive. For most people most of the time, it just doesn't matter what IE actually is.

But the prosecutors and the judge should be intimately familiar with such subtle differences and accutely aware of their significance, especially since law often turns on subtle "technicalities." It's obvious from these documents that they are not so technologically sophisticated. Microsoft understands the subtle differences and took advantage of the lack of technological sophistication of the prosecutors and the judge. (I almost can't blame them for that. If it were another software company they were taking advantage of, I don't think I'd blame them much at all.) Someone in a courtroom will delete an icon from the computer's desktop and claim they've deleted IE and Bill Gates will jump up and down and yell and scream that it's still there and you can still run it and you didn't do anything but delete this little shortcut here in the folder "C:\Windows\Desktop" and while he was talking he already put it back the way it was. Or, someone else will "remove" IE and Gates will claim that IE is much more than just a browser and 90% of the files are still on your hard drive and usable. And, according to his current defintion of IE, he'd be right. By the time the court or the DOJ will realize what's going on with Windows95, it won't matter anymore because Gates will have already merged the browser with the Windows shell so that the shell is the browser and the browser is the shell, and Netscape is out of business.

I don't know what's the best solution to the problem of judges lacking technological sophistication having to rule on technology-related issues. A judge can hire as many special masters as he wants, but they can't write his final orders. Judges don't reach the bench immediately after law school and they are therefore almost always going to be behind on modern technology. Perhaps we should give judges some slack and put the onus of resolving technological ambiguities on those that are in the best position to understand the technology. I think it's very clear what Judge Jackson was trying to accomplish with his order, and the law should be such that Microsoft would be found in contempt.

Andy Bloch

-- Anonymous, October 08, 1998

Response to Andrew's Tirade

Let me preface this by saying I'm not sure what, if any, contribution this will make to the discussion. But I just had to take issue with one of the precepts of Andrew's tirade: "The real problem with this entire litigation is that the DOJ lawyers and the courts seem to have been woefully technologically unsophisticated." Supposedly, the evidence for this comes from Judge Jackson's failure to specify what, exactly, his definition of Internet Explorer was (although, as an aside, I think the specification of IE 3.0, 4.0, etc. made things much more clear than they otherwise would have been, since Microsoft was marketing its *browser* as IE 4.0, *not* all internet capabilities--those were already built in, not neatly packaged in the IE 4.0 box anyone could buy at CompUSA).

My problem is this: I have several friends who were computer science majors in college and now write software for a living. They have been following this case closely since before I was ever aware that there even was a case. None of them, by virtue of their superior technical knowledge, know any more about what Microsoft defines as Internet Explorer than I do. In fact, I would feel very safe in guessing that were they to read the materials we read for class (which I'm sure they probably have, I just haven't asked), they would understand the meaing of "IE 3.0" in the consent decree to mean the *browser*, not all internet/HTML capabilities. So it seems to me that the problem isn't one of non-techie judges and DOJ lawyers just not getting it; rather, the problem seems to be Microsoft (deliberately or otherwise) clouding the issue in a way that would make it difficult for anyone not able to read Bill Gates' mind to determine what, exactly, they mean when they discuss IE. This is especially true since, to everyone else, IE is clearly a product name that is associated with their browser (to date, I have *never* seen an ad for IE mention TCP/IP, or any other of the basic internet or HTML functions). Yes, knowledge of technical issues is important in cases like this. But so is common sense.

-- Anonymous, October 08, 1998

Definition of IE

I believe that Judge Jackson does define what he considers to be IE as "the software code distributed at retail" (injunction, pp 15-16)

"The balance of harms also favors the issuance of a preliminary injunction.... Enjoining Microsoft pendente lite from forcing OEMs to accept and install the software code that Microsoft itself now separately distributes at retail as "Internet Explorer 3.0..."

Judge Jackson should have focused on functionality rather than the software code itself. By prohibiting Microsoft from requiring OEMs to retain Win95/IE's general web-browsing capability, Jackson could have focused on the anti-competitive conduct without getting involved with Win95/IE code.

However, once the injunction was defined in terms of the software code, I believe that Microsoft presented 3 appropriate options for OEMs:

1. Win95 with IE 2. Functional Win95 that contains no IE code (Original version - Build 950.6) 3. Latest Win 95 that contains no IE code (non-functional)

Although Microsoft could have provided OEMs increased freedom over IE installation, they were not required to do so by the injunction.

-- Anonymous, October 08, 1998