From...

December 1, 1998
Web posted at: 10:30 AM EST

by Kim S. Nash

(IDG) -- While Microsoft Corp. lawyers spar with government witnesses over who remembers receiving which E-mail messages and what they meant, the judge in the federal antitrust trial is apparently struggling to understand computer jargon.

That isn't unusual in a computer industry trial, but it's an important factor in evaluating the case, legal experts said. A critical question facing the judge is the meaning of terms such as bundling and integration.

So much so that U.S. District Judge Thomas Penfield Jackson questioned a witness from Apple Computer Inc. about the two words recently.

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Yet there is little agreement even among computer experts on what these terms mean (see chart). As one chief technology officer with 20 years in the industry noted, "The distinctions are rather soft. I don't know that there's a tight consensus on the terminology."

Whether Microsoft should be allowed to ship two products -- Internet Explorer and Windows -- together is one of the central issues in the case.

Though the Justice Department says Microsoft illegally bundled, or tied, its browser and operating system together, the vendor contends the products are inextricably integrated.

Of course, Microsoft critics say that's the nut of the issue -- Microsoft regularly and perhaps illegally absorbs once-separate applications into Windows in order to perpetuate the Windows hegemony. Besides the Internet Explorer browser, Microsoft also has added, for example, disk compression utilities -- once an applications market unto itself -- into Windows.

Before Jackson can decide the case, he will have to form definitions for the key terms, then determine whether and how Microsoft's behavior compares. That's where a special master would have helped, said Robert Lande, an antitrust professor at the University of Baltimore. A special master is a court-appointed expert who can weed through competing arguments to present a trusted report to the judge.

To define bundling vs. integration without an adviser, Jackson might "draw the line at where it is relatively easy or hard to take the finished [product] apart," explained Yee Wah Chin, an antitrust lawyer at Squadron, Ellenoff, Plesent & Sheinfeld LLP in New York.

In other words, if Internet Explorer can be easily separated from Windows without damaging either product, it could be called "bundled." If the browser can't be extracted from Windows without chaos, it could be dubbed "integrated."

But Jay Westermeier, a lawyer at Fenwick & West LLP in Washington, had a more nuanced definition of integrated software. He said it's a set of code that "can't operate by itself" and needs to be run with another set of code.

In that case, Internet Explorer could be considered both bundled and integrated with Windows because Microsoft also offers it as a separate product that can be downloaded from the Internet, said Westermeier, a past president of the Computer Law Association in Washington.

But Jackson is also required to consider legal precedents that pertain to the tying of products, namely the U.S. Supreme Court case Jefferson Parish Hospital District No. 2 v. Hyde, Lande noted.

Among the criteria in that case are whether there is a separate consumer demand for the two products in question, whether the products are ever sold separately and whether they were built separately, Lande said.

"If he's confused, the judge will err on the side of caution and go with Microsoft," Lande speculated.

Among industry rivals, however, the definitions of bundling and integration may be simple, said Jeff Tarter, editor of "Softletter," in Watertown, Mass. "Bundling is what the competition does. Integration is what you do," he quipped.