The Lack of Justification: Why Did Microsoft Do That?

iii. Lack of Justification

175. No technical reason can explain Microsoft’s refusal to license Windows 95 without Internet Explorer 1.0 and 2.0. The version of Internet Explorer (1.0) that Microsoft included with the original OEM version of Windows 95 was a separable, executable program file supplied on a separate disk.

Web browsing thus could be installed or removed without affecting the rest of Windows 95's functionality in any way. The same was true of Internet Explorer 2.0. Microsoft, moreover, created an easy way to remove Internet Explorer 1.0 and 2.0 from Windows 95 after they had been installed, via the “Add/Remove” panel.

This demonstrates the absence of any technical reason for Microsoft’s refusal to supply Windows 95 without Internet Explorer 1.0 and 2.0.

176. Similarly, there is no technical justification for Microsoft’s refusal to license Windows 95 to OEMs with Internet Explorer 3.0 or 4.0 uninstalled, or for its refusal to permit OEMs to uninstall Internet Explorer 3.0 or 4.0.

     
     

     Microsoft’s decision to provide users with an “uninstall” procedure for Internet Explorer 3.0 and 4.0 and its decision to promote Internet Explorer on the basis of that feature demonstrate that there was no technical or quality-related reason for refusing to permit OEMs to use this same feature.

     
     

     Microsoft would not have permitted users to uninstall Internet Explorer, nor would consumers have demanded such an option, if the process would have fragmented or degraded the other functionality of the operating system.

177. As with Windows 95, there is no technical justification for Microsoft’s refusal to meet consumer demand for a browserless version of Windows 98. Microsoft could easily supply a version of Windows 98 that does not provide the ability to browse the Web, and to which users

     could add the browser of their choice.

     
     

     Indicative of this is the fact that it remains possible to remove Web browsing functionality from Windows 98 without adversely affecting non-Web browsing features of Windows 98 or the functionality of applications running on the operating system.

     
     

     In fact, the revised version of Professor Felten’s prototype removal program produces precisely this result when run on a computer with Windows 98 installed.

178. In his direct testimony, Felten provides a full technical description of what his prototype removal program does. This description includes a list of the twenty-one methods of initiating Web browsing in Windows 98 that were known to Felten when he developed his program.

     
     

     When the revised version of Felten’s program is run on a computer with Windows 98 and no other software installed, Web browsing is not initiated in response to any of these methods.

179. James Allchin tried to show at trial, by way of a videotaped demonstration, that the functionality of Internet Explorer could still be enabled, even after the prototype removal program had been run, by manually adding a new entry to the Windows Registry database.

     
     

     During Felten’s rebuttal testimony, one of Microsoft’s attorneys directed Felten to perform a second demonstration intended to show that the functionality of Internet Explorer could still be enabled, even after the prototype removal program had been run, by hitting the “control” and “N” keys simultaneously after running the Windows Update feature.

     
     

     Neither of these methods of initiating Web browsing was among the twenty-one documented methods known to Felten when he developed his program.

     
     

     Furthermore, the latter demonstration was hardly a reliable test of Felten’s program, because the Encompass shell browser and other applications had been installed on the Windows 98 PC system used in the demonstration.

     
     

     At most, the two demonstrations indicate that Felten did not know all of the methods of initiating Web browsing in Windows 98 when he developed his program, and that he did not include steps in his program to prevent the invocation of Internet Explorer’s functionality in response to methods of which he was unaware.

     
     

     Microsoft has special knowledge of its own products, and it alone chooses which functionalities in its products are to be documented and which are to be left undocumented. Felten was aware of this fact, and he himself noted that his own documentation of initiation methods was not exhaustive.

     
     

180. Allchin also attempted to show that Felten’s program causes performance degradations in Windows 98, as well as malfunctions in certain Windows 98 applications and the Windows Update feature of Windows 98.

     
     

     Those demonstrations, however, were performed on a PC on which several third-party software programs had been installed in addition to Windows 98, and which had been connected to the Internet via a dial-up connection.

     
     

     Felten’s program was not intended to be definitive and had not been verified under preconditions other than those for which it was designed. Thus, there was no reason to expect that his program would operate flawlessly during Allchin’s demonstrations, and nothing can be inferred from any failure to do so.

     
     

181. In fact, the revised version of Felten’s program does not degrade the performance or stability of Windows 98 in any way. To the contrary, according to several standard programs used by Microsoft to measure system performance, the removal of Internet Explorer by the prototype program slightly improves the overall speed of Windows 98.

182. Given Microsoft’s special knowledge of its own products, the company is readily able to produce an improved implementation of the concept illustrated by Felten’s prototype removal program.

     
     

     In particular, Microsoft can easily identify browsing-specific code that could be removed from shared files, thereby reducing the operating system’s memory and hard disk requirements and obtaining performance improvements even beyond those achieved by Felten.

     
     

183. Microsoft contends that Felten’s prototype removal program does not remove Internet Explorer’s Web browsing functionalities, but rather “hides” those functionalities from the perspective of the user.

     
     

     In support of that contention, Microsoft points out that Felten’s program removes only a small fraction of the code in Windows 98, so that the hard drive still contains almost all of the code that had been executed in the course of providing Internet Explorer’s Web browsing functionalities.

     
     

     Some of that code is left on the hard drive because it also supports Windows 98's operating system functionalities. Microsoft did not offer any analytical basis, however, for distinguishing this sharing of code from the code sharing that exists between all Windows applications and the operating system functionalities in Windows 98.

184. While Microsoft’s observation suggests that Felten’s program does not greatly reduce Windows 98's “footprint” on the hard disk, that point is irrelevant to the question of whether Felten’s program removes Internet Explorer’s functionalities from Windows 98.

     
     

     This is because the functionalities of a software product are not provided by the mere presence of code on a computer’s hard drive. For software code to provide any functionalities at all the code must be loaded into the computer’s dynamic memory and executed.

     
     

     To uninstall a software program or to remove a set of functionalities from a software program, it is not necessary to delete all of the software code that is executed in the course of providing those functionalities. It is sufficient to delete and/or modify enough of the program so as to prevent the code in question from being executed.

185. This deletion and modification is precisely what Felten’s program does to Windows 98. After Felten’s program has been run, the software code that formerly had been executed in the course of providing Web browsing functionalities is no longer executed. Web browsing functionalities are not merely “hidden” from the user.

     
     

     To the contrary, Felten’s program deletes and modifies enough of Windows 98 so as to prevent the necessary code from being executed altogether. Since code that is not to be executed does not need to be loaded into memory, Felten’s program is able to reduce the memory allocated to Windows 98 by approximately twenty percent.

186. As an abstract and general proposition, many — if not most — consumers can be said to benefit from Microsoft’s provision of Web browsing functionality with its Windows operating system at no additional charge.

     
     

     No consumer benefit can be ascribed, however, to Microsoft’s refusal to offer a version of Windows 95 or Windows 98 without Internet Explorer, or to Microsoft’s refusal to provide a method for uninstalling Internet Explorer from Windows 98.

     
     

     In particular, Microsoft’s decision to force users to take the browser in order to get the non- Web browsing features of Windows 98, including support for new Internet protocols and data formats is, as Allchin put it, simply a choice about “distribution.”

187. As Felten’s program demonstrated, it is feasible for Microsoft to supply a version of Windows 98 that does not provide the ability to browse the Web, to which users could add a browser of their choice. Microsoft could then readily offer “integrated” Internet Explorer Web browsing functionality as well, either as an option that could be selected by the end user or the OEM during the Windows 98 setup procedure, or as a “service pack upgrade.”

188. Unlike a “pocket part” supplement to a book, a software upgrade need not consist only of new material. A service pack upgrade may install a combination of new software files and/or replacements for existing software files.

     
     

     The use of such service packs to distribute new functionality is a standard feature of Windows applications generally. Microsoft could offer “integrated” Internet Explorer Web browsing functionality as a service pack upgrade that would locate the relevant software and replace it with the current Windows 98 software.

     
     

     In this way, any consumer who wished to do so could easily acquire all of the functionality, features, and performance of the current version of Windows 98 by obtaining the browserless operating system package and the service pack upgrade and then installing them together.

189. Microsoft contends that a service pack must necessarily be deemed part of the operating system when it replaces and adds a large number of core operating system files in the process of upgrading the operating system to a higher level of functionality.

     
     

     This contention is false. Both Microsoft Word, an application program, and Norton Utilities, a suite of utility and application programs, replace and add files to Windows without thereby becoming part of the operating system.

190. Microsoft’s actual use of a service pack upgrade to offer integrated Internet Explorer Web browsing functionality (Internet Explorer 4.0) separately from the Windows 95 operating system illustrates the feasibility of this approach.

     
     

     In fact, it produces results remarkably similar to those that could be achieved by offering integrated Internet Explorer Web browsing functionality as a separate service pack upgrade to a browserless Windows 98 operating system.

     
     

     When installed together by the end user, the combined software provides nearly all of the features that Microsoft attributes to the “integrated” design of Windows 98. Of the missing features, all but WebTV for Windows can be obtained by thereafter installing a separately obtained copy of Internet Explorer 5.0.

     
     

     Microsoft has presented no evidence that the WebTV functionality could not easily be included in the stand-alone version of Internet Explorer 5.0.

     
     

191. Therefore, Microsoft could offer consumers all the benefits of the current Windows 98 package by distributing the products separately and allowing OEMs or consumers themselves to combine the products if they wished.

     
     

     In fact, operating system vendors other than Microsoft currently succeed in offering “integrated” features similar to those that Microsoft advertises in Windows 98 while still permitting the removal of the browser from the operating system.

     
     

     If consumers genuinely prefer a version of Windows bundled with Internet Explorer, they do not have to be forced to take it; they can choose it in the market.

192. Windows 98 offers some benefits unrelated to browsing that a consumer cannot obtain by combining Internet Explorer with Windows 95. For example, Windows 98 includes support for new hardware technologies and data formats that consumers may desire.

     
     

     While nevertheless preferring to do without Web browsing, Microsoft has forced Windows users who do not want Internet Explorer to nevertheless license, install, and use Internet Explorer to obtain the unrelated benefits.

     
     

     Although some consumers might be inclined to go without Windows 98's new non-browsing features in order to avoid Internet Explorer, OEMs are unlikely to facilitate that choice, because they want consumers to use an operating system that supports the new hardware technologies they seek to sell.

193. Microsoft’s argument that binding the browser to the operating system is reasonably necessary to preserve the “integrity” of the Windows platform is likewise specious. First, concern with the integrity of the platform cannot explain Microsoft’s original decision to bind Internet Explorer to Windows 95, because Internet Explorer 1.0 and 2.0 did not contain APIs.

     
     

     Second, concern with the integrity of the platform cannot explain Microsoft’s refusal to offer OEMs the option of uninstalling Internet Explorer from Windows 95 and Windows 98 because APIs, like all other shared files, are left on the system when Internet Explorer in uninstalled.

     
     

     Third, Microsoft’s contention that offering OEMs the choice of whether or not to install certain browser-related APIs would fragment the Windows platform is unpersuasive because OEMs operate in a competitive market and thus have ample incentive to include APIs (including non-Microsoft APIs) required by the applications that their customers demand.

     
     

     Fourth, even if there were some potential benefit associated with the forced licensing of a single set of APIs to all OEMs, such justification could not apply in this case, because Microsoft itself precipitates fragmentation of its platform by continually updating various portions of the Windows installed base with new APIs.

     
     

     ISVs have adapted to this reality by redistributing needed APIs with their applications in order to ensure that the necessary APIs are present when the programs are launched. To the same end, Microsoft makes the APIs it ships with Internet Explorer available to third-party developers for distribution with their own products.

     
     

     Moreover, Microsoft itself bundles APIs — including those distributed with Internet Explorer — with a number of the applications that it distributes separately from Windows.

     
     

194. Microsoft also contends that by providing “best of breed” implementations of various functionalities, a vendor of a popular operating system can benefit consumers and improve the efficiency of the software market generally, because the resulting standardization allows ISVs to concentrate their efforts on developing complementary technologies for the industry leaders.

     
     

     Microsoft’s refusal to offer a version of Windows 98 in which its Web browser is either absent or removable, however, had no such purpose. Rather, it had the purpose and effect of quashing innovation that exhibited the potential to facilitate the emergence of competition in the market for Intel-compatible PC operating systems.

     
     

195. Furthermore, there is only equivocal support for the proposition that Microsoft will ultimately prove to be the source of a “best of breed” Web browser. In fact, there is considerable evidence to the contrary.

     
     

     Both Microsoft and the plaintiffs have used product evaluations to support their claims about the relationship between innovations in Web browser technology and consumer choices regarding the use of Web browsers.

     
     

     These product evaluations generally compare Internet Explorer with Navigator by identifying the beneficial and detrimental features of each. Because the evaluations disagree as to which features are most important, there is no consensus as to which is the best browser overall.

     
     

     When read together, the evaluations also do not identify any existing Web browser as being “best of breed” in the sense of being at least as good as all others in all significant respects.

     
     

     Moreover, there is nothing in the evaluations, nor anywhere else in the evidence, to suggest that further innovation efforts by vendors other than Microsoft in the field of Web browser technology are no longer necessary or desirable.

     
     

     To the contrary, many of the product reviews suggest further innovations in both Microsoft and non- Microsoft Web browsers that would benefit consumers.

     
     

196. Despite differences in emphasis, the product evaluations do generally concur as to which browser features are beneficial, which browser features are detrimental, and why.

     
     

     Thus, the evaluations provide extensive detailed information about consumer preferences that can be used to predict likely directions in the evolution of Web browser technology.

197. First, the evaluations suggest that, although most Web publishers charge nothing for access to their sites, consumers recognize that there are search and communication costs associated with Web transactions. Accordingly, consumers prefer, and benefit from, innovations in Web browser technology that reduce these costs.

     
     

     Second, consumers recognize that the Web contains a vast and growing range of digital information resources, many of which contain viruses that are capable of causing devastating and irreversible harm to their security and privacy interests.

     
     

     Accordingly, consumers prefer, and benefit from, innovations in Web browser technology that help them identify and avoid harmful Web resources. Third, consumers recognize that they frequently lack adequate information to enable them to assess accurately the costs, risks, and benefits of performing a particular Web transaction.

     
     

     Accordingly, consumers prefer, and benefit from, innovations in Web browser technology that help them assess these costs, risks, and benefits prior to performing the transaction.

198. The reduction of search and communication costs, the identification and avoidance of harmful Web resources, and the provision of more accurate information as to the costs, risks, and benefits of performing Web transactions are just three of the many possible areas of innovation in the field of Web browser technology.

     
     

     Far from demonstrating that Internet Explorer is currently a “best of breed” Web browser, the evidence reveals Microsoft’s awareness of the need for continuous improvement of its products. For example, Microsoft frequently releases “patches” to address security and privacy vulnerabilities in Internet Explorer as they are discovered.

     
     

     In sum, there is no indication that Microsoft is destined to provide a “best of breed” Web browser that makes continuing, competitively driven innovations unproductive.

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This court case Civil Action No. 98-1232 (TPJ) retrieved on 2-07-2023, from justice.gov is part of the public domain. The court-created documents are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction.