An attorney who once represented Compaq in a complaint against Microsoft got a bit nostalgic on Monday when asked about the icon spat between AOL and Microsoft.
"This is, as Yogi Berra would say, deja vu all over again," Allan Van Fleet, of Texas law firm Vinson & Elkins, said in reference to the tussle between AOL and Microsoft over what millions of computer users will see when they load up their new machines at Christmas.
"The Microsoft case really got off in earnest when the Texas attorney general's office began investigating Compaq's complaints that Microsoft went in and upset a deal Compaq had with Netscape," he said. And on Monday, it seemed to some people that Microsoft was interfering in a deal that Compaq had made with AOL, which is the current owner of Netscape.
Yogi Berra would love it.
This apparent interference came in the form of Microsoft's announcement Monday that computer manufacturers who put any icons on the desktop of Windows XP -- the new version of its operating system -- must also include an icon for MSN, Microsoft's ISP.
The decision was made public only after Compaq said last Friday it had struck a deal with AOL to exclusively feature AOL's Internet service on the startup sequence of computers featuring Windows XP.
Microsoft had previously announced that it would loosen restrictions on the new desktop operating system to let computer makers remove the icon for Microsoft's Internet Explorer browser and replace it with that of a rival browser such as Netscape Navigator.
But Vivek Varma, a spokesman for Microsoft, insisted that this new point was not at all a reversal of its earlier statements. The company might not have disclosed this icon clause to reporters three weeks ago, "but we certainly told (computer makers) about this deal," he said. "You can call this a clarification if you like, but they did know of this point."
Varma said the company had even drawn up formal modifications to its licenses at the time that included this proviso. So this is not news, he said -- it shouldn't be treated as some kind of surprise.
But Roger Friezelo, a spokesman for Compaq, said that his company has heard nothing from Microsoft about the terms for desktop icons.
"There's been no negotiations or discussions between Microsoft and us on this issue," he said. "So our plans have really remained unchanged -- we'll have AOL on the desktop along with Compuserve and have MSN positioned on the start menu."
He added: "If what is being reported is true we'll make those decisions when (Microsoft) comes to us."
Microsoft's competitors, too, were surprised.
"It appears that Microsoft is backing off their much-ballyhooed itty bitty teeny weeny sliver of flexibility and heading back to the rigid stance that has been slapped down by the second-highest court in the land," said AOL Time Warner Vice President John Buckley.
But Varma dismissed this as competitive squealing. "AOL clearly has a self interest in trying to raise controversy over this," he said. "They're trying to deflect attention from the fact that they're paying people to hide MSN. When you first start up XP, you get a screen that says 'Would you like Internet access?' AOL is paying computer makers not to have MSN included as an option. That is unprecedented and a clear blow to consumer choice."
He added that Microsoft would never "pay (computer makers) to exclude competing access offers. I would argue our actions enable more consumer choice. AOL's excludes more consumer choice."
But Van Fleet, the former Compaq attorney, recalled that Microsoft didn't always have so rosy an outlook on "consumer choice." He said that Microsoft once sent Compaq a letter "in which Microsoft threatened to terminate Compaq's license to use Windows because they had the Netscape icon on the desktop and not the Internet Explorer (icon) on the desktop."
In a deposition, John Decker, a Compaq executive, testified that the company then decided against including Navigator altogether because the inclusion of IE in Windows made that unnecessary.
"This was to my thinking one of the most blatant anti-competitive practices," Van Fleet said, "clearly leveraging the monopoly power it had over Windows to promote its own products."
But he said this new rule about icons was even worse than that. "You could say the Internet browser's an integral part of the computing experience," he said. "But with something like a wholly separate Internet service like MSN you have hardly any argument that it's part of the operating system.
"But I guess we all know (Microsoft CEO) Steve Ballmer says they can integrate ham sandwiches with the OS if they want to."
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The Associated Press contributed to this report.
