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We told you your e-mails would get you

On November 20, 1997, the U. S. Department of Justice filed a brief in its case against Microsoft. According to the government brief, internal company e-mails contradict Microsoft's claim that Internet Explorer is an integral functionality of the company's Windows 95 operating system. In addition, language was used ("leverage" Windows) that consistently has been held by courts to indicate intent to violate antitrust laws. Following are key excerpts from the DOJ brief.

Remember: e-mail is admissible. Don't put anything in an e-mail you don't want to read in court.

Case Excerpts

Microsoft's description of its intention to include browsing functionality in Windows 95 "in late 1993 and early 1994" -- i.e., during the time when the consent decree was being negotiated -- is simply false. Microsoft relies on the declaration of its executive Steven Sinofsky and five attached Microsoft documents dating from December 1993 to April 1994 (Exh's A-D, G). According to the Sinofsky declaration, Microsoft adopted, at an April 6, 1994, retreat, "concrete plans" for including "Internet-related technologies" in Windows 95 and that Bill Gates discussed those plans in two speeches, on April 7 and April 19, 1994, that were publicized in newspaper articles. Sinofsky Decl. at 8 & 9, Exh.'s E & F. As a result, Microsoft alleges, "the DOJ has known about the inclusion of Internet-related technologies in Windows 95 for more than three years." MS Opp. at 35.

Microsoft's own documents -- documents that Microsoft did not provide to this Court and Mr. Sinofsky did not attach to his declaration -- belie this story. These documents, many of which were authored by Mr. Sinofsky himself, include the following:

April 17, 1994 -- In a cover e-mail distributing the Internet "retreat memo" (Sinofsky Exh. D), Mr. Sinofsky described the outcome of the retreat, not as "concrete plans," but as "suggestions from the groups that are not yet the definitive strategic directions." McCarthy Conf. Decl. 5, Exh.1 at MS 5022492. (emphasis added)

April 20, 1994 -- Mr. Sinofsky explained in an e-mail what Bill Gates meant in his publicized April 19 speech (Sinofsky Exh. F):

"Chicago will have all the pieces necessary to connect to the internet in the box." Taken litterally [sic], this just means TCP/IP and PPP. Never talks about front ends, etc. . . . there is no answer to the question "Does Microsoft support Mosaic," since Mosaic is just a tcp/ip winsocket app, "yes, but that doesn't imply we ship it, etc."

McCarthy Conf. Decl. 6, Exh. 2 (emphasis added). "Mosaic" was the only widely used Internet browser at the time and, as will be seen, was the product that Microsoft ultimately licensed, some nine months later, to use in developing its Internet Explorer.

April 20, 1994 -- Replies to Mr. Sinofsky's e-mail confirm:

at the moment a lot of external people are asking if we will be shipping internet apps [applications]. The position we have taken so far is that Chicago contains all the plumbing you need to hook up to the net -- but cool apps like Mosaic are stuff you need to obtain from 3rd parties.

* * * * *

McCarthy Decl. 6, Exh. 2 (emphasis added). June 10, 1994 -- Another Sinofsky e-mail makes this point even more strongly:

We do not currently plan on any other client software, especially something like Mosaic . . . . [Rather,] [w]hat we should be doing is getting as many third parties writing as many internet things on top of WinSock as possible, including as many WWW [world-wide web], gopher, TN3270, etc clients as they can afford to do.

McCarthy Conf. Decl. 7, Exh. 3 (emphasis added).

January 11, 1995 -- Microsoft announces that it has just licensed the Mosaic technology from Spyglass. The accompanying draft press questions and answers make clear that it was this technology, first acquired some six months after the consent decree was signed, and not some long-standing Microsoft development work, that was to be used to create Internet Explorer. "The Mosaic software will be the basis for WWW browser capability in a variety of ways in our product lines." This document also shows that Microsoft's browser development and shipment plans were separate from Windows 95:

Q. So this means that Windows 95 will ship with Mosaic built-in?

A. At the present time there are no plans to ship . . . the Mosaic software in the Windows 95 box when it ships in August of this year. . . . Our plan is to deliver this capability shortly after Windows 95 ships.

McCarthy Conf. Decl. 9, Exh. 5 (emphasis added, redline and strikeout omitted).11 See also McCarthy Conf. Decl. 8, Exh. 4.

This sequence of documents demonstrates not only that the United States was not on notice of the alleged "integration" of Internet Explorer, but that in fact Internet Explorer was not designed or "developed" to be an integrated product with Windows 95. Instead, it was independently created out of a separate existing product, Mosaic, which Microsoft only licensed in January 1995. Internet Explorer was designed and intended to be released as a separate application product, after the release of Windows 95, to work along with or in conjunction with Windows 95. Consistent with this plan, Microsoft did not distribute Internet Explorer with the version of Windows 95 initially released for retail purchase.

Indeed, nearly two years later -- and four months after IE 3.0 was released to the market and some three months after Windows 95 version OSR 2 was released -- Jim Allchin, a top Microsoft executive, made clear both that IE 3.0 is a separate product and that Microsoft intended to "leverage" its Windows 95 market power in order to help IE 3.0 "win" the browser war. Mr. Allchin's document, titled "concerns for our future," states:

1. Ensuring that we leverage Windows. I don't understand how IE is going to win. The current path is simply to copy everything that Netscape does packaging and product wise. . . . My conclusion is that we must leverage Windows more. Treating IE as just an add-on to Windows which is cross-platform [is] losing our biggest advantage -- Windows marketshare. We should dedicate a cross group team to come up with ways to leverage Windows technically more. . . . . We should think first about an integrated solution -- that is our strength.

Gaspar Conf. Decl. 17, Exh. 14 (December 20, 1996 e-mail from Jim Allchin to Paul Maritz). IE 3.0 had been released four months before this document was written. Clearly, Mr. Allchin regarded IE 3.0 not as integrated into Windows, but rather as "just an add-on to Windows." For IE 4.0, of course, there is no basis for considering it to be integrated, in light of its wholly separate existence from Windows 95.

Mr. Allchin's memorandum also makes clear the true reason Microsoft chooses to require OEMs to install and distribute Internet Explorer on all PCs with Windows 95. That reason has nothing to do with updating Microsoft's operating system or developing an integrated product. Rather, it has everything to do with Microsoft using the "leverage" of its "Windows marketshare" in order to increase distribution of Internet Explorer and thus to "win" the browser war. This is precisely what Section IV(E)(i) is designed to prevent.

UNITED STATES OF AMERICA, Petitioner, v. MICROSOFT CORPORATION, Respondent.
Supplemental to Civil Action No. 94-1564, REPLY BRIEF OF PETITIONER UNITED STATES OF AMERICA

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.