Microsoft: No Restriction On OEM Browser Choice
Filed at 12:57 p.m. EST
By Darryl K. Taft for Computer Reseller News, CMPnet
Joachim Kempin, Microsoft's elusive senior vice president in charge of OEM sales, came to court Wednesday with a reputation for anachronism and did not disappoint as he offered sometimes confusing explanations of the software giant's dealings with its top OEMs.
Kempin stuck to the Microsoft party line that Windows is a copyrighted product owned by Microsoft, and Microsoft alone has say over how or whether that product is modified.
A major portion the government's cross-examination of Kempin dealt with Microsoft's Windows licensing scheme, including how the proviso seems to limit OEMs from offering users equal access to competing browsers and how it appears that some OEMs fare better than others under the scheme.
David Boies, the government's lead attorney in the landmark antitrust trial, hit hard at Microsoft's relationship with Compaq, particularly Compaq's Windows 98 license, which enables the computer maker to place its Internet registration form before the Microsoft Welcome screen.
Kempin testified that though Houston-based Compaq has that provision written into its Windows license, it is available to other OEMs, and, in fact, "somewhere between 12 and 15" OEMs have taken advantage of the opportunity.
The opportunity, however, must come in the form of a letter granting OEMs an exemption to the standard Microsoft Windows licensing agreement, Kempin said. At Boies' urging, Kempin said there are around 500 OEMs that get Windows through distribution.
"The reason the provision is in the Compaq contract is it was renegotiated" at the time Compaq renewed its Windows license, last March, said Mark Murray, a spokesman for Redmond, Wash.-based Microsoft.
Kempin also testified to this on the stand, saying with the launch of Win 98 only three months away from that March date, Compaq sought additional coverage.
In a videotape preceding Kempin's testimony, a Microsoft product manager demonstrated customization options available to several OEMs including Sony, Compaq, and a fictional company created for the purposes of the demonstration.
Boies asked Kempin whether the "great deal of customization available to the OEMs" and demonstrated in the videotape could be achieved under the standard license agreement.
"If we had not sent them the additional letter, they could not have done that," Kempin said.
Boies went after the videotape from another angle, after getting Kempin to acknowledge Microsoft had initially made a videotape to accompany his testimony last November, but the company made a new videotape earlier this month.
Boies said a key difference between the two tapes is the Compaq Presario depicted in the newer tape contains an icon for Netscape's browser. The November tape could not have featured this, Boies said, because Compaq did not make Netscape an option on this line of computers until January of this year.
Kempin said he was unaware of the change in Compaq's policy until he saw it when the new video was prepared.
"I was surprised to see it come up," he said.
Yet, Boies suggested Compaq, a key Microsoft partner, made the change as a concession to Microsoft for this trial. But Kempin said he thought the change was indicative of how fast the industry changes. He added he did not think it has anything to do with this case.
Boies said he found it curious that Richard Schmalensee, Microsoft's expert economist, was able to testify about the Compaq change during his testimony in December, but that Kempin, who is in charge of OEM sales, did not know about it until February.
"My people missed it," Kempin said, "and I don't have time to go in computer stores and check every single computer."
Later, outside the courthouse, Boies said the evidence introduced about the Microsoft-Compaq relationship is "another example of where Compaq and Microsoft are joined at the hip."
Kempin gave several confusing responses to Boies' questions about Compaq favored status in terms of the Internet sign-up process.
First he said Compaq could insert its registration inside the welcome-screen module. Then he said Compaq could insert its registration form before the welcome screen, and, because Compaq had the opportunity, Microsoft offered it to other OEMs.
The welcome screen, however, is not modifiable. "We had a good design of the welcome screen, and we didn't want anyone to tamper with it," Kempin said.
However, Microsoft maintained placement of the Internet registration form before the welcome screen is actually preferred by OEMs.
"Is it for advertising reasons?" asked Judge Thomas Penfield Jackson. "You wanted the Microsoft logo to sit there and stare at them [users] for a certain period of time?"
Kempin said the welcome screen is not the same as the splash screen where the Windows logo is displayed.
Meanwhile, Boies introduced evidence on how Gateway 2000 asked Microsoft, and Kempin specifically, where they could "offer a browser choice in the start-up sequence." Kempin had testified doing such a thing was technically complex.
However, a Gateway document entered into evidence showed Gateway believed "this is something we can do technically," but it is "not allowed in the licensing terms."
Still, Murray said, "Microsoft has never in any way impeded the consumer choice when it comes to browsers."
In addition, the Gateway document says: "We are concerned that the installation of the full Microsoft product [IE] (including channels) results in a much slower system performance if the customer chooses an alternative browser after full installation on IE 4."
The Gateway document also says, "We want IE to have uninstall (for as much of the code as can be removed without disabling the system)." Boies asked Kempin if it was correct that Microsoft forbade that. "That is correct," Kempin replied. "What would you expect?"
"That is a question you are here to answer," Boies said.
Prior to Kempin, Microsoft's eleventh witness to take the stand, Eric Engstrom, general manager of the Web Essentials Division for MSN, completed testimony. Engstrom refuted claims that Microsoft tried to sabotage Apple's QuickTime audio/video playback scheme on Windows. Some trial watchers called Engstrom the strongest witness Microsoft has put on the stand so far. |
