Consumers would suffer from myriad hardware and software incompatibilities if third-party Windows licensees were allowed to remove pieces of the operating system, a Microsoft executive testified Tuesday morning at the company's remedy hearing.
Later in the day, Microsoft showed portions of the videotaped deposition of an assistant attorney general for one of the states suing Microsoft, who took the lead in crafting the states' proposed remedies. With this video, Microsoft hoped to show the court that the states' remedies are vague, confusing, and difficult to implement and comply with, according to company spokesman Jim Desler.
One of the remedies proposed by the states suing Microsoft would force the company to let PC vendors and other Windows licensees omit portions of the operating system from the final product they deliver to customers. U.S. District Court Judge Colleen Kollar-Kotelly is hearing proposed remedies to Microsoft's anticompetitive behavior from both the company and from nine states plus the District of Columbia that are pursuing litigation. Last November the U.S. Department of Justice and nine other states reached a settlement with Microsoft; the holdout states are seeking tougher restrictions on the company's business practices.
Such "unbundling" of Windows would be harmful to end users, said Microsoft's Robert Short, vice president for Windows core technology, who continued his testimony on Tuesday morning. This is because Windows licensees could leave out key pieces of software, such as device drivers that control external hardware like printers and monitors and make them work with Windows.
"Consumers have grown to expect and demand that they can go into any computer store and purchase hardware that will just work on the Windows system," Short said in his written direct testimony prepared before his appearance in court.
Lawyer for the states Laurie Fulton asked why Short interpreted the states' remedies to mean that device drivers could be pulled from Windows by licensees. It's the states' broad definition of middleware -- any software that exposes application programming interfaces -- that would make device drivers susceptible to removal, Short said, since drivers would fit the states' middleware definition.
In his written direct testimony, Short gave the hypothetical example that if it so chose, Hewlett-Packard Co. (HP) could license Windows and remove drivers for all non-HP printers on the PCs that it sells. If a customer purchased an HP PC and a Canon Inc. printer, the two would not work together under this example, Short said.
Fulton asked if Short objected to giving PC makers such flexibility. "My objection would be that my team would be expected to support that" unbundled version of Windows, he said.
If, as Short maintains in his written testimony, consumers like the "plug and play" abilities of Windows that let them use a wide variety of hardware with the operating system, then wouldn't they continue buying the complete version of Windows that the states' remedy said could also be sold, Fulton asked. "I think they'll buy the cheapest" PC, Short said.
Fulton asked whether, under the states' remedy, Windows licensees could also remove Internet access software from the operating system, to which Short answered yes. She then asked whether a PC maker would advertise the fact that it was selling a version of Windows without Internet access. Short said his concern was that the majority of PC customers wouldn't understand the explanation. "It's a very complicated thing to explain," he said.
The lawyer then asked if Short is against giving customers such choice. "That's not what I said at all," Short answered, adding that there should be choice, but under the states' remedy customers won't be able to buy the same wide range of software and devices that work with Windows today.
On Tuesday afternoon, Microsoft played for the court a three-hour videotape of excerpts from a pre-hearing interview that Microsoft lawyers conducted with Tom Greene, California senior assistant attorney general, who is coordinating the Microsoft case for the states. California is one of the states pursuing litigation.
During the deposition, which took place on March 12, attorney for Microsoft Steven Holley asked Greene detailed questions about the states' proposed remedies.
Holley asked whether, under the states' provisions, Microsoft would be forced to treat a small systems integrator that built 100 PCs a year the same way it treats PC giant Compaq Computer Corp. Greene answered that the two companies' status would be the same, but that Compaq would need more information from Microsoft because it sells more PCs. Holley asked whether Microsoft could deny the small integrator access to the same information that it provides to Compaq under the proposed remedy. Microsoft could not, Greene said.
"This would be subject overall to reasonableness requirement, of course, but certainly the status (of the two companies) is the same," Greene said. Attempting to point out the vagueness of the states' proposal, Holley asked where in the states' remedies regarding treatment of PC vendors "an overarching reasonableness requirement" is mentioned.
"I think just that is how one has to view all decrees," Greene responded.
The lawyer for Microsoft also asked how the software company is to determine which portions of its code are considered middleware, in order to comply with the states' unbundled Windows provision. "It's a process, frankly," Greene answered. Microsoft would have two obligations under that provision -- to remove middleware modules and to make sure that neither Windows nor other Microsoft middleware modules suffer degradation as a result.
"I can imagine that, given those two obligations ... certain kinds of middleware might involve taking out less software than some other forms of middleware," Greene said.
Getting at the burden that the states' remedies would place on Microsoft, Holley also asked if the software company would be responsible for offering end-user support for modular versions of Windows. "I don't think that Microsoft ... can throw up its hands and say 'we are not responsible anymore,' because you do have a continuing responsibility to make sure that the underlying OS, separate and apart from the middleware products that may have been removed, still operates," Greene said.