Judge Orders Microsoft to Turn Over Software E-Mails

Microsoft Corp. was ordered by a federal judge Thursday to turn over internal e-mails containing analysis of its software products that could undermine one of the company’s key defenses in its antitrust trial.

The government says the analysis, sent by Microsoft software engineer David D’Souza to several company officials, supports its claim that Microsoft’s Internet Explorer Web browser can be separated from Windows without harming the operating system.

The distinction between browser and operating system is a critical issue in the landmark case brought against Microsoft by the Justice Department, 19 states and the District of Columbia. The government contends the bundling of Internet Explorer with Windows constitutes product “tying,” a practice that is illegal when used by a monopolist to force customers of one product to also take another.

But Microsoft, which bitterly fought the release of the e-mail on grounds of attorney-client privilege, says it is not a monopoly and has repeatedly claimed that integrating its browser with Windows helps consumers. The company also says that severing the browser--which allows computer users to navigate the Internet--would cripple Windows.

Outside the court, jubilant Justice Department lawyer David Boies told reporters Microsoft fought so hard against the release of D’Souza’s e-mail because “they recognized the harmful character of the document.”

But Microsoft general counsel Bill Neukom said: “We didn’t have anything to hide.”

In his Oct. 21 e-mail, D’Souza did not address the potential harm that removing the browser might create. Instead, he enumerated the 1,700 computer functions he says are shared or used separately by the browser and the operating system.

He concluded that Windows and the Internet Explorer browser have a “huge amount of sharing and commonality.”

The disclosure of the e-mail comes as Microsoft Senior Vice President James Allchin is expected to take the stand Monday to testify about Microsoft’s motivations in integrating the Internet Explorer Web browser with Windows.

Government lawyers are expected to take aim at Allchin’s contention in his written direct testimony that the government’s tying claims are unfounded.

“There is no neat distinction between operating system software and the software that runs on top of it,” Allchin said in his 135 pages of written testimony. “Web browsing software can be implemented primarily as an application or middle-ware that runs on top of an operating system, as Netscape elected to do, or as an integral part of the operating system itself, as Microsoft elected to do.”

Allchin added that integration of new features and functionality into operating systems benefits customers and software developers.

As an example, he cited Windows’ “Get Connected” utility that simplifies the once-onerous task of filling in numbers and other information to set up a connection to the Internet.

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Times wire services were used in compiling this report.