As the Microsoft antitrust trial winds inexorably toward its ugly conclusion, things are beginning to heat up once again. Internet law expert and professor Lawrence Lessig, who had been appointed as "special master" during the trial, filed a "friend of the court" brief this week where he declined to opine whether a 1998 appellate court ruling should be applied to the current case. The Court of Appeals ruled in June 1998 that Microsoft's integration of Windows and Internet Explorer was legal and provided benefit to consumers. Lessig, whose brief discusses the possible legal ramifications of Microsoft's product tying, urges the court to gain a stronger understanding of software development so that it might rule fairly in the case.
"I am not a skeptic of courts' ability to understand how software functions," Lessig explains in his brief.
Lessig discusses the development of Internet Explorer, from a standalone application that shipped with the first OEM version of Windows 95 to the more componentized versions that began with IE 3; these versions replaced key system files and enmeshed themselves with the underlying operating system, he says. Finally, with Windows 98, Microsoft had combined browsing and non-browsing modules so completely that it was impossible to remove Internet Explorer from Windows and be left with a functioning operating system.
"For consumers that require no browser functionality, the Court has found that this design will induce 'performance degradation, increased risk of incompatibilities, and the introduction of bugs,'" Lessig states. "For consumers who want the IE browser functionality, the Court found the design 'unjustifiably jeopardized the stability and security of the operating system'...The Court has not found any technological justification for this design."
The brief then discusses Microsoft's 1994 consent decree, the now-infamous document where Microsoft agreed to alter its licensing practices. However, the wording of the decree granted Microsoft leverage with "developing integrated packages," language the company used to justify its integration of Windows with Internet Explorer. The question of course is whether Microsoft integrated the two solely to bypass its consent decree or because it was attempting to benefit users. Lessig leaves that decision to Judge Jackson, of course, but he does note that, legally, there must be "some technological value to integration."
The bulk of Lessig's filing focuses on product tying and how the law applies to the software industry, especially Microsoft Windows. Ultimately, Lessig concludes, however, that case basically comes down to a simple decision: Whether Windows and Internet Explorer are two separate products in the eyes of the law. If they are, he says, Microsoft is guilty of product tying and antitrust violations. And Lessig leaves that decision to the judge.