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Decoding the Trial
JAN. 22, 1998
By Mike France

Will the Sabotage Claim Stick? Not Likely
The court has heard plenty of charges about dastardly behavior -- but seen little evidence

Throughout Microsoft's history, rivals have periodically accused the company of sabotaging their software. How? By allegedly taking advantage of its control of the Windows operating system. For their products to work properly, programmers at other companies need information about how to hook into Windows. By denying this information, or introducing deliberate incompatibilities, Microsoft is able to subvert other companies' software, rivals claim.

While sabotage isn't a major theme of the Justice Dept.'s case, these charges have surfaced in Judge Thomas Penfield Jackson's courtroom, and Justice is using them to argue that Microsoft is a predatory monopoly. Netscape CEO Jim Barksdale, for example, testified that Microsoft withheld information about its so-called applications programming interfaces (APIs) that his company needed to make its browser compatible with Windows 95. Apple's Avadis Tevanian accused Microsoft of changing Windows to impair his company's QuickTime multimedia software. Government computing expert Edward Felten said the company even sabotaged a program he wrote that was intended to show how easily Internet Explorer could be separated from Windows -- a claim that made Judge Jackson furious with the company. Microsoft firmly denies all the charges.

INDEPENDENT AUDITORS. Given that the operating system is going to be an increasingly important part of everyday life -- a tool that will potentially change the way people communicate, shop, and entertain themselves -- these are serious allegations. If the judge believes that Microsoft has sabotaged other companies' software, he could potentially impose some tough remedies. Jackson might, for example, order Justice to supervise Microsoft's release of APIs. That would likely require some sort of independent auditing body on the Microsoft campus.

That's strong medicine -- though quite unlikely. Why? Because none of these claims were backed by conclusive proof. Tevanian admitted on cross-examination that he had no hard evidence that Microsoft had deliberately tried to "break" QuickTime -- and defense lawyers say Apple's own errors caused the incompatibility with Windows. As Microsoft's lawyers present their case, it shouldn't be hard for them to mute the government charges by noting the lack of any "smoking guns" proving the sabotage charges.

As a result, these claims probably won't play a big role in the lawsuit's outcome. Jackson may cite them as circumstantial evidence that the company has taken a pattern of predatory steps to protect its monopoly. But he probably won't take any steps specifically aimed at preventing the alleged sabotage problem. That would come as a big relief to Microsoft, naturally. But now that the charges have been aired in a court of law, the company will have to be particularly vigilant in the future when it comes to sharing essential information about Windows.

France is Business Week's Legal Affairs editor


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