Microsoft's Appeal of the Preliminary Injunction

In response to Judge Thomas Penfield Jackson's Preliminary Injunction requiring Microsoft to offer OEMs a version of Windows 95 without Internet Explorer (I.E.), Microsoft appealed this decision.  Microsoft claims that in addition to containing fundamental errors, the Preliminary Injunction upsets the status quo rather than preserves it, and causes irreparable harm to Microsoft, third parties, and the general public.

 Actual text of Microsoft's Motion for an Expedited Appeal
 (contains explanation of the Appeal)

Fundamental Errors

Microsoft claims that the Preliminary Injunction is invalid because of fundamental errors on the part of the Court.  These errors violate standard procedures for invoking preliminary injunctions.

  • The Preliminary Injunction was issued without notice to Microsoft.  In fact, Microsoft did not even know the Court was considering a preliminary injunction.
  • The Preliminary Injunction was issued without a hearing.  Microsoft claims they must be allowed an opportunity in which to oppose the application of the injunction.
  • The Preliminary Injunction was issued without finding of fact.  The District Court itself acknowledged that without further evidence, determining if Microsoft were in violation of the Consent Decree would be premature because of the disputes of fact.
  • The DOJ used an "anti-tying" argument in their petition to find Microsoft in contempt.  However, when looking into consent decree violations, the petitioner can only deal with the facts of the contract, not the legislation the contract originally sought to enforce.
  • Precedent states that the Court cannot interfere with technical development in the way they do with this Preliminary Injunction.

Preliminary Injunction Upsets the Status Quo

Microsoft finally argues that the Preliminary Injunction, supposedly invoked to preserve the status quo, does just the opposite and causes unnecessary and irreparable harm to Microsoft.  Microsoft does not currently, and never did offer a version of Windows 95 without the Internet functionality of Internet Explorer.  By removing all the code that has anything to do with Internet Explorer, Windows 95 will cease to work - in fact, it might not even start.  In addition, many third party application developers rely on I.E. functionality in their programs.  With I.E. removed, their programs would either not work, or they would have to delay development (a major setback in the fast paced environment of application development).  Finally, the Preliminary Injunction applies not only to Windows 95, but to all successors, including Windows 98, even though the DOJ has no evidence about Windows 98. The Preliminary Injunction would harm Microsoft, who has invested a lot of time, effort and money into this complicated product, as well as third party developers who are relying on Windows 98 being released in the second quarter of 1998.