Attorney Chips Away At Gates' Testimony That Unbundled Windows Is Not Possible

Microsoft

Under stringent cross-examination by the states' lead attorney, Steven Kuney, Gates acknowledged that the move by many state attorneys general to force Microsoft to produce a stripped-down version of Windows stems from the U.S. Court of Appeals' finding last June that integrating Internet Explorer code with Windows 98 was an antitrust violation.

While inconsistencies in his testimony later in the day seemed to indicate that a stripped-down version was possible, Gates said during early morning testimony that it's not going to happen--regardless of the court's decision.

Microsoft would pull Windows off the market before giving in to such a remedy, Gates said during his testimony, repeating over and over that producing a stable version of Windows without integrated Internet code is not technically feasible.

When asked if the company would at least try to comply if that remedy is approved by the court, a decision in the hands of U.S. District Judge Colleen Kollar-Kotelly, Gates said no. "We'd be in an awful situation where we'd be under a court order we can't comply with except by withdrawing Windows from the market," Gates said. "We'd come back to every court that would listen to us. We'd make every effort on the legal front not to let [that remedy be imposed on us as a requirement."

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Kuney pressed Gates on the technical feasibility point, noting that Microsoft makes its Internet middleware products available separately from Windows for download and should be able to produce a stripped-down version of the OS at some point with engineering effort.

Gates disagreed. "I feel quite sure there's not [a way to comply," he said. "If remedy No. 1 is imposed, we'd have a lot of problems. I'd be open-minded, but I don't think that's a section that Microsoft could comply with."

Gates also said he would sick his team of lawyers on the issue for years "to have the court relieve us of this requirement."

While Gates acknowledged that there is an effort under way at Microsoft to identify and expose "certain" software interfaces between the OS and Internet middleware components as part of his tentative consent decree with the U.S. Department of Justice, he said there is no way to isolate the Internet components from Windows without crippling the operating system.

Some observers, however, describe that contention as extreme and untrue.

Microsoft's only concession on the integration violation is giving OEMs more flexibility in configuring the Windows desktop, Gates said. That concession, announced by Microsoft after the appeals court ruled that the commingling of code was an antitrust violation, gives OEMs the right to remove end-user access to the Internet Explorer icon from the Windows desktop.

But later, Gates acknowledged that Microsoft is shying away from an unbundled version of Windows for business reasons, as well as technical reasons. He expressed concerns, for example, that competitors such as AOL Time Warner would create an "AOL-specific" version of Windows and give OEMs financial incentives to use an unbundled version of Windows.

"There are incentives for people to use an unbound version," Gates said about a version of Windows stripped of Internet middleware. "There are people [in the OEM market that would take advantage of this and then there would be a negative effect [on the market."

Kuney was also successful in steering Gates to trip on another thorny issue: consumer benefit. When asked by Kuney if he sees any consumer demand for a stripped-down version of Windows, Gates replied simply that "Microsoft is making a business decision."

Pressed again, Gates indicated such a version would not be in the interests of Microsoft or the market. "There's not enough demand to make it commercially attractive to do testing and marketing and the confusion of having another choice [in the OS," Gates said.

Earlier in the day, Kuney asked Gates to defend his position that a stripped-down version of Windows is technically unfeasible when one of the state witnesses, an expert in software and computer science, said it was feasible. In testimony on April 10, Andrew Appel, a computer science professor at Princeton University, testified that "this remedy provision is technically feasible."

Kuney asked Gates on Tuesday: "Your interpretation is better than Mr. Appel, a computer scientist?"

Gates said, "I guess you can say that."

The commingling issue is of great importance to Microsoft because its product integration efforts have enabled it to engender a monopoly, experts have said.