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More states join call for extra Microsoft policing

Attorneys general in four states that previously said antitrust agreement was working now say Redmond's "Microsoft's Windows monopoly is indisputably resilient."

Updated at 4:00 p.m. PDT: In something of a surprise move, four state attorneys general who previously praised the effectiveness of Microsoft's antitrust settlement with the feds said they're not ready to see five years of oversight wind down just yet.

In a nine-page court filing with U.S. District Judge Colleen Kollar-Kotelly on Thursday, officials in New York, Maryland, Louisiana and Florida said they were joining a group of six states, led by California and the District of Columbia, in calling for dragging out oversight on Redmond until 2012.

"An extension is appropriate to assure that marketplace participants have sufficient opportunity to establish positions to compete against Microsoft, an entrenched monopolist," they wrote, according to a document seen by CNET

According to the filing, officials from Illinois, Kentucky, and Ohio also "do not object" to extending the oversight period, while Michigan, North Carolina and Utah took no position on the matter. Wisconsin did not join in the filing. (If the list of states seems somewhat random, it's because not all 50 states originally filed antitrust suits against Microsoft paralleling the federal government's case, and even some of the initial filers of the suit have fallen off over the years.)

At issue is a 2002 consent decree with the Bush administration, most of which is scheduled to expire next month. One small portion, related to a communications protocol licensing program that has encountered numerous delays since its inception, has already been extended through November 2009.

The formal request earlier this week for a five-year lengthening of the agreement by the so-called "California group" was expected, as an attorney for those plaintiffs discussed his concerns in detail at a regularly scheduled court hearing last month. But the "New York group" participants hadn't previously suggested that they would go that route, signing onto a joint filing with the Justice Department that argued the consent decree has been doing its job.

The latest filing discusses what the attorneys general call the "indisputably resilient" monopoly that Microsoft holds in the operating system realm. They say they are "mindful" that Windows' approximately 90 percent market share in client operating systems is not the only test for how successful the antitrust agreement has been. But, they add, "the absence of meaningful erosion in Windows' market share is still problematic for the public interest."

Because of those concerns and Microsoft's "well-known difficulties" in complying with other portions of the consent decree, specifically a server protocol licensing section, it's appropriate for the oversight period to cover a full decade, as is typical of antitrust consent decrees, the New York group argues.

The New York group's joint filing with the Justice Department in August said: "Microsoft was never found to have acquired or increased its monopoly market share unlawfully. Therefore, the final judgments were targeted to reinvigorating competitive conditions that Microsoft had suppressed, not to slicing off some part of Windows' market share."

The Justice Department said in a filing on Friday that it would not seek a continuation of the consent decree.

"The United States will not file a motion to extend its Final Judgment as it does not believe that the standard for such an extension has been met," the agency said.

Microsoft has not set a date for filing a response, said spokesman Jack Evans.

"We believe the consent decree has served its purpose," Evans told on Friday. "Microsoft has worked hard to implement the decree's requirements and has changed its practices as a result. We also have committed to a broad set of operating principles going forward that go beyond the scope of the decree."

Microsoft has also contended in the past that the government's final judgments were never designed to reduce its market share, "to bring about fundamental structural changes in the IT industry or to override choices made by consumers about which PC operating systems or other software products they would use." The company pointed to its declining market share in the realms of Web browsing, audio and video players, Java virtual machines, e-mail and instant messaging.

The parties are scheduled to meet again in Kollar-Kotelly's courtroom early next month.