Microsoft Raises Specter Of 'Mutant' Operating Systems

Microsoft

Microsoft attorney Dan Webb told Judge Colleen Kollar-Kotelly that Microsoft would have to market 4,096 modular editions of the Windows operating systems -- some with built-in products such as Windows Media Player and Internet Explorer, some without these applications -- in order to meet requirements set forth in a proposed remedy backed by nine states and the District of Columbia.

Microsoft tests every version of its operating systems for "millions of hours," Webb said. Subjecting thousands of different versions of Windows XP, Windows 2000 and other operating systems to quality-control measures "simply can't be done" if the company is to remain competitive and solvent, Webb said.

Webb issued a blistering response to the opening statement set forth by Brendan Sullivan and Steven Kuney, attorneys who spoke on behalf of the states pressing the case -- California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah and West Virginia -- as well as the District of Columbia.

"As I listened to Mr. Sullivan walk down memory lane this morning," Webb said, "it became obvious to me" that the plaintiffs are out to transform the current litigation into "a second liability trial," he complained.

But, he said, "the remedy proposed by the non-settling states is wrong, because they want to address different conduct and different markets and different products" than those dealt with in the first U.S. District Court trial under Judge Thomas Penfield Jackson, and the subsequent trial in the U.S. Court of Appeals.

Speaking for a tableful of Microsoft legal eagles that included outgoing general counsel Bill Neukom, Webb said the prospect of development and marketing thousands of versions of the Windows operating system would start the company -- and the industry -- down a slippery slope.

Once the company's operating system was fragmented in this manner, "massive confusion in the marketplace" would result, as well as damage to other companies in the "PC ecosystem," which Webb said also includes chip makers, ISVs and PC manufacturers.

Webb took issue with numerous other aspects of the plaintiffs' proposed remedy, including the stipulation that Microsoft would open up source code and technical details, letting other software makers effectively "clone" Microsoft products.

"The exposure [would be breathtaking, truly breathtaking," Webb said. "If Windows was cloned by Sun [Microsystems or any other competitor, then the value of Windows to Microsoft is essentially zero. If Windows can be cloned, none of the competition will have borne the research and development costs."

Other complaints alleged by the states in the proposed remedy where thrown out -- or dismissed by the plaintiffs themselves -- in the two prior trials, Webb said.

Webb said Microsoft expects to call as many as 30 witnesses in the coming weeks. One of the scheduled witnesses, Roger Needham, managing director of Microsoft's research group, is expected to describe how implementation of the states' proposed remedy would create a computer-security nightmare for users of Windows-based PCs.

The trial continues here Tuesday.