Here's the DOJ web site posting of their reply brief:
usdoj.gov
A few off the top of my head observations (these are all based on incomplete data, obviously -- there may be additional facts which would change this analysis significantly):
1. DOJ says repeatedly in its brief that the purpose of the "integrated products" language of the consent decree is to allow Microsoft to develop "new" integrated products. Yet, the word "new" appears nowhere in the relevant language. The clause states:
. . . (provided, however, that this provision in and of itself shall not be construed to prohibit Microsoft from developing integrated products) . . .
This is not dispositive. You could introduce extrinsic evidence to show the drafters of the agreement only intended the phrase to apply to "new" integrated products. But, to do that, you'd need to allow a full blown hearing with discovery, which the government says is unnecessary and that it does not want to do.
On a related point, the government says, apparently in response to Neukom's "false dichotomy" argument, that:
"As the United States envisions it, under Section IV(E)(i) of the decree, either something is a single "integrated" product or, as here, there are two or more separate products. Microsoft argues to the contrary that an integrated product can include multiple separate "other" products. (See MS Opp. At 19, 21.) But Microsoft's ultimate position in this proceeding would not be correct, even if there were circumstances in which separate products could be "integrated" within the meaning of the section. In that event, the Final Judgment would both prohibit Microsoft's forced bundling of the separate products and, through the proviso, ensure that Microsoft is entitled to "develop" the "integrated" product and to offer it as an alternative for customers who choose to license it.
This seems like a pretty good response. The question is whether it applies to Windows/IE. Which leads into --
2. The government talks ad nauseam about what internal memos say Microsoft did or did not intend to do. The government says that, since Microsoft did not intend to do it, the Government necessarily could not have been on notice of such an intent by Microsoft. Three points are worth making here:
(a) It appears there is a disputed issue of fact as to what Microsoft intended to do. Sinofsky's declaration, you will recall, says:
On April 6, 1994, Microsoft held a day-long meeting of top-level managers, including Mr. Gates, Mr. Allard and myself, to discuss
Microsoft's strategy for integrating Internet-related technologies into its operating systems. That meeting resulted in concrete plans for including many Internet-related technologies in Windows 95, including a viewer for content on the World Wide Web.
microsoft.com (emphasis added)
In its brief, the government says:
According to the Sinofsky declaration, Microsoft adopted, at an April 6, 1994, retreat, "concrete plans" for including "Internet-related technologies" in Windows 95 and that Bill Gates discussed those plans in two speeches, on April 7 and April 19, 1994, that were publicized in newspaper articles. Sinofsky Decl. at 8 & 9, Exh.'s E & F. As a result, Microsoft alleges, "the DOJ has known about the inclusion of Internet-related technologies in Windows 95 for more than three years." MS Opp. at 35.
Microsoft's own documents -- documents that Microsoft did not provide to this Court and Mr. Sinofsky did not attach to his declaration -- belie this story.
It then goes on to describe a bunch of e-mails where Sinofsky appears to say, in essence, that Microsoft's browser plans were not "concrete."
That appears to me an awfully lot like a disputed issue of fact. Sinofsky says Microsoft has concrete plans. The documents appear to support the inference that Microsoft did not have concrete plans. Maybe there's a way to get around this problem, but, it seems to me that deciding issues like this is what evidentiary hearings and trials are for.
Maybe Microsoft's intent is not a "material" issue of disputed fact, in which case summary judgment could be granted. But if it's disputed, you can't rely on it on summary judgment, and the premise of the government's "lack of notice" argument is removed.
(They could argue that Microsoft's intent was ambiguous or unclear, but, then, where does that leave them with respect to how that ambiguity was intended to be dealt with under IV(E)(i)?)
(b) The second observation is that there is absolutely no discussion whatsoever of what the government people who drafted this agreement thought it meant at the time -- what Microsoft told them, what they intended the language to mean, etc. Of course, the obvious reason for this is that the government does not want to get into a position where it has to make these people avaialble for deposition.
(c) The third point is that the brief collapses the issue of what Microsoft intended to do together with the issue of what Microsoft was allowed to do. This mode of argument seems to me to be dictated by the posture of the case: they are trying to the matter resolved summarily, so they have to stick to arguments whose development does not require discovery.
3. Finally, Footnote 16 of the DOJ filing says:
Inasmuch as end users perceive "Internet Explorer" as the icon present on the Windows 95 desktop's graphical user interface, and because of the simplicity of removing that icon, the United States' Petition requested that the Court order Microsoft to inform end users as to how to delete only the IE icon from their Windows 95 desktops. See Petition, p. 19, 4. The United States seeks more than that with respect to licensing of IE by OEMs, because it believes that OEMs, and through them new PC purchasers, should, under the terms of the Final Judgment have the ability to freely choose among browser products in all respects. Nonetheless, permitting OEMs not to install the icon (or other visible manifestations of the browser) could achieve much of the value of complete relief and would be consistent with the Final Judgment. Of course, an order requiring only that Microsoft not compel OEMs to display the IE icon on the Windows 95 desktop or in easily accessible files as a condition of licensing Windows 95 would not cause any application or other part of Windows 95 to "break," if that were otherwise a concern, because the code on which such software depends could remain.
Could this be an olive branch? |
