Justice Dept. Says Microsoft Defied Court

WASHINGTON — The Justice Department said Monday that Microsoft Corp. twisted, tortured and defied a court order and must now be compelled to offer computer makers Windows 95 software separate from the company’s Web browser.

U.S. District Judge Thomas Penfield Jackson ordered Microsoft on Dec. 11 to offer its Windows 95 operating system separately from its Web browser. But the company appealed his order, saying it made “little sense.” It offered computer makers the option of taking either an old version of Windows 95 or one it said would not work.

The Justice Department, arguing that the Redmond, Wash.-based software giant had intentionally twisted the ruling to subvert it, said in a court filing Monday that Microsoft “improperly seeks to rewrite the court’s injunction. The court should end Microsoft’s disobedience and bring it into compliance.”

The department said the company’s position was a “tortured construction” of the court’s order that renders it “a nullity.”

Microsoft had no immediate comment.

In an earlier court filing, Microsoft argued that Jackson had used a very particular definition of its Web browser, specifically including the computer code it sells as Internet Explorer. As it turns out, removing that code causes problems with Windows 95, but Microsoft said it “has done exactly what the court ordered it to do.”

The government, however, said Microsoft obstinately zeroed in on a snippet of the reasoning within the judge’s 19-page decision, rather than complying with his order.

Justice officials said Jackson had given Microsoft leeway on how to best carry out his order and had not ordered the company to offer an unworkable or obsolete product.

“The injunction does not compel any particular mode of compliance with its proscription as long as Microsoft avoids the forbidden conditioning,” the Justice Department said.

To underscore its point, the government included three analyses of how to remove Internet Explorer published by Wired News, the ZDNet Web site and Computer Reseller News.

A Justice Department spokesman said the brief, along with the articles, would be available today at the department’s Web site, https://www.usdoj.gov

Jackson will conduct a hearing on the case Jan. 13. The Justice Department is seeking a $1-million-a-day fine for Microsoft’s alleged contempt of court.

In his ruling, Jackson issued a preliminary injunction against the company forbidding it from requiring computer makers to accept its Web browser with its operating system. Most computer manufacturers must have the Windows 95 system in order to stay in business.

He also appointed a special master, Harvard law professor Lawrence Lessig, to conduct inquiries into the matter and advise him by the end of May.

Microsoft has filed court papers saying it believes Jackson improperly appointed Lessig, whom it said may be biased against Microsoft.

Both parties were set to meet with Lessig today in New York.

Microsoft shares rose $5.56 to close at $126.31 on Nasdaq on a day of active trading, particularly among the high-tech sector.

For the last few months, the Justice Department and Microsoft have been in a battle arising from a 1995 consent decree aimed at promoting competition in the software industry.

Under that decree, Microsoft was prohibited from tying the purchase of one product to another. At the time, the department sought a separate $1-million-a-day contempt citation against Microsoft, contending it bundled its Windows 95 system with Internet Explorer.

Microsoft is in bitter competition with Netscape Communications Corp. for the market in Web browsers, which permit access to the World Wide Web.

Microsoft has argued that its Web browser is an integral part of Windows 95. (Under the consent decree, the company may sell integrated products.) Competitors and the Justice Department argue that the Web browser is a separate product.