Section IV (E) (i) of the Microsoft consent decree prohibits Microsoft from "expressly or impliedly condition[ing]" a license of its operating system to an original equipment manufacturer upon that OEM's licensing of some "other product." That section contains an express limitation, namely that the prohibition "in and of itself shall not be construed to prohibit Microsoft from developing integrated products." Whether the government can prevail depends on its ability to convince the decree court that the way Microsoft has marketed IE with and without Windows makes IE an "other product" and not part of an "integrated" Windows product.

In its enforcement petition, the government claims that Microsoft's requirement that OEMs ship or install IE with Windows 95 violates the prohibition because Microsoft and its competitors sell browsers separately, and that in updated versions of IE, Microsoft has shipped the IE and Windows software on separate disks. In addition, the government claims its position is bolstered by the fact that three OEMs tried to delete IE from the desktop (though they wanted to install IE on the machines they shipped) but were told by Microsoft that if they did, Microsoft would terminate their Windows license.

Microsoft, on the other hand, essentially claims that the government's arguments exalt form over substance. According to Microsoft, at the time the express limitation was included in section IV (E) (i), Microsoft told the government that the limitation was necessary so that the company could upgrade its operating system to include Internet functionality. And, when Microsoft introduced Windows 95 (which is explicitly referred to in the decree by its code name, "Chicago"), it included IE 1.0. Microsoft does not impose an additional charge on the OEMs for including IE. Moreover, an Internet browser really provides functionality (e.g., information location and retrieval) with respect to the Internet that operating systems have traditionally performed with respect to internal hard drives and local networks. The fact that Microsoft also sells IE separately is far from dispositive of the issue--after all, no one doubts that a GM automobile including a radio is an "integrated product" even though GM also sells automobile radios separately.

Judge Jackson ultimately will have to resolve the meaning of the decree. However, it appears that the government has an uphill fight. Ambiguities in decrees are typically resolved against the government. In addition, the government's case must rise or fall on the language of the decree. The government cannot fall back on some purported "spirit" or "purpose" of the decree to justify an interpretation that is not clearly supported by the language of the decree.