Monday, October 19, 1998 Published at 20:23 GMT 21:23 UK
USA versus Microsoft: the background
Trial of the century: USA v Microsoft
By independent computer analyst Graham Lea
The biggest software company in the world is locking horns with the most powerful government in what promises to be one of the most important trials this century: USA versus Microsoft.
The trial may well continue into the next century, since whichever side loses, an appeal is likely.
At issue are the business practices of Microsoft that have made it difficult or impossible for rivals to be competitive with Microsoft.
Not because Microsoft's software is necessarily better, they say, but mostly because Microsoft effectively locks them out of the market by extending its operating systems monopoly into other markets.
Twice before, the US Department of Justice (DoJ) has tried to restrain Microsoft from its aggressive stance towards all competitors, but without success. As far back as 1989, the US Federal Trade Commission started investigating Microsoft, but no conclusion was reached as the FTC Commissioners could not agree on any action.
The DoJ took over the case, and agreed with Microsoft in 1994 that it would stop requiring that PC makers had to pay for MS-DOS whether it was included with the PC or not.
This consent decree agreement was much criticised by many in the industry, as well as by Judge Sporkin in the federal district court in Washington DC, who refused to sign the decree. He was overruled in the court of appeals.
Next there was a complaint to the DoJ by Netscape in which it was alleged that Microsoft was breaking the terms of the consent decree by making it compulsory for PC makers to distribute Internet Explorer browser with Windows 95, even if the PC maker wanted to offer the alternative Netscape Navigator.
After much legal wrangling, the court of appeals overturned a temporary injunction that Judge Jackson had imposed preventing Microsoft from insisting that Windows 95 must also be offered without Internet Explorer.
After this second setback, the DoJ started in May the new case that is now being heard and which is expected to last at least six weeks.
An unusual feature of the case is that twenty of the US states, plus the District of Columbia, are also taking similar action against Microsoft, and their case has been combined with that of the DoJ.
Microsoft has objected to what it regards as a broadening of the case by the DoJ, to include issues concerning Sun's Java, Caldera's DR-DOS and Bristol Technologies' access to certain Windows NT source code. These three companies have separate cases in other courts against Microsoft.
Netscape will be giving evidence of how it alleges Microsoft illegally tried to divide the browser market, so that Microsoft had the Windows market and Netscape had the rest.
Bill Gates will not appear in the witness box, although it is likely that extracts from three days of videotaped testimony will be shown to the court.
The procedure will be for the DoJ to present its evidence first. To save time, the judge has ordered that the twelve witnesses that each side is allowed will not present their evidence in person, but provide written statements that can be entered into the court record before the witnesses are cross-examined. Microsoft will then have its chance to defend itself.
Whatever the outcome, users are not likely to be much affected in the near future.
What is at stake is whether the computer industry will be competitive in the future, or whether Microsoft's tough competitive attitude will allow it to extend its monopoly from the operating systems market to most other markets.
While the gladatorial contest proceeds in the courts, an important concern for Microsoft will be how its actions are perceived in the court that may really decide the issue - the court of public opinion.
Graham Lea is a leading computer analyst specialising in Microsoft and who will be following the case for BBC News Online - his views do not represent those of the BBC. Graham Lea@heterodox.com