Microsoft Corp and the Department of Justice yesterday exchanged bile once again over Microsoft’s appeal against the extension of Judge Thomas Penfold’s ruling that the company must offer a version of its operating system that does not include browser technology. Penfold said that the ruling applied to Windows 95 or any successor thereof, and it is that that is seriously worrying Microsoft. Microsoft asked the appeals court to lift the restriction on Windows 98 and do so before May 15 when it plans to ship the OS to personal computer manufacturers. The DoJ hit back with its own filing asking for details about Microsoft’s modification of the Windows start-up sequence, desktop screen, Windows Experience. Justice is also looking for information about Microsoft’s relationship with internet service providers and software vendors. The start-up sequence at present requires that access be given, via shortcut icons, to Internet Explorer and the Microsoft Network (MSN). The DoJ also criticized Redmond for waiting until now to lodge this objection, when the preliminary injunction that imposed the situation was made back in December. The two sides came to an agreement that the company should offer the separate version of Windows 95 in January. Justice also claims that Microsoft should first seek relief at the lower, federal district court, before going to the appeals court. It says Microsoft has advanced no valid reason for bypassing the district court, and could have gone to the district court at any time for clarification. Instead, says Justice, it decided to complete the Windows 98 development without regard to the preliminary injunction and then seek relief. By waiting until the eve of Windows 98’s release to file its Motion, Microsoft attempts not only to garners what it apparently perceives as the tactical advantage of filing in this Court, but also to present this Court with the fait accompli of Windows 98 implemented without regard to the district court’s order, a short time-frame in which to rule, and a self-generated claim of hardship, Justice said in its filing. Microsoft’s shares closed down $3 at $83.375 on volume more than 40% higher than average.
