Judges Drill Microsoft On IE Strategy

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February 26, 2001 (8:40 AM EST)

By Mary Mosquera,

WASHINGTON—As expected, appeals court judges on Monday morning grilled Microsoft attorneys about the company's browser strategy.

In a hearing to determine whether a ruling to split the company will take effect, Microsoft lawyer Richard Urowsky maintained--as the company has all along--that Microsoft Corp. (stock: MSFT) broke no laws.

"What lies at the heart of the case and cuts across all is that Microsoft did nothing to foreclose Netscape from any part of the marketplace," Urowsky said in his opening statement.

Some of the seven judges hearing the case seemed to express skepticism.

"If the actions look predatory, why are they pro-competitive?" said Chief Judge Harry Edwards.

One key point that U.S. District Court Judge Thomas Penfield Jackson made in the antitrust trial was that Microsoft could easily disable its own browser to allow OEMs to offer a choice of browsers. In a now-famous scenario, Microsoft lawyers argued that this was too difficult for the company to do, after which Jackson himself hid the IE icon on his PC desktop.

But Monday, Urowsky maintained the Add/Remove utility is too difficult to use.

"I'm not buying that one at all," Edwards said.

The judges were clearly prepared for the appeal. Edwards, as well as Judges Douglas Ginsburg and David Tatel, were particularly vocal Monday morning. The panel questioned Urowsky closely on Microsoft's entry into the browser market and Netscape's subsequent fall from grace. Netscape Communications Corp. once held more than 80 percent of the browser market but quickly saw that erode in the face of Microsoft's Internet Explorer onslaught.

Urowsky said when the first antitrust trial started, Netscape's user base actually grew by 25 million users.

The hearing will continue throughout Monday, allowing time for both Microsoft and government attorneys to state their cases.

Microsoft fared poorly in the trial phase, but has said it expects to prevail on appeal. In the past, this court has ruled favorably for Microsoft.

Meanwhile, Robert Bork and Ken Starr are both in the courtroom, sitting behind government attorneys. They are advising ProComp, an anti-Microsoft lobbying group.

And in the PR run-up into the trial, David Boies, the government's trial attorney, was featured on 60 Minutes Sunday night. Boies will not be part of the appeal.