Despite producing some potentially damning new evidence against Microsoft late last week, the Department of Justice may be running out of time in its antitrust case against Microsoft.
The reply brief filed Thursday called on Judge Thomas Penfield Jackson to move quickly to prevent Microsoft from going ahead with its plans to require PC vendors to preinstall Internet Explorer 4, starting this February, as a condition of licensing Windows 95.
The brief contends that "this is a matter of considerable urgency," since most PC vendors need two or three months to make changes to the software that comes preinstalled on their machines.
But at least one analyst thinks it's already too late for the government to force any big changes in Microsoft's business practices. Giga Group analyst Rob Enderle says that some PC vendors, including Dell, are already shipping machines with IE4 preinstalled. And Enderle says that even if the court ruled that Microsoft couldn't require the rest to include IE4, almost all would do so voluntarily.
He explains: "It [IE4] is free [to vendors] regardless. ... Nobody wants to be negatively differentiated, so even if only 10 percent of your audience wants IE4 preloaded, you're better off just doing it."
The Justice Department's brief further asks the court to deny Microsoft's request for a new period of discovery and evidentiary hearings. The government argues that the facts of the case are already on the table and don't require further time-consuming research.
Even if the Justice Department gets its wish, Enderle says the poor timing of the action against Microsoft doomed it from the start. Judge Jackson is expected to decide at a December 5 hearing where the case of the United States versus Microsoft will go next.