States group wants to extend Microsoft antitrust oversight

Group, led by California, tells federal judge it plans to try to extend oversight until 2012; judge says she needs more time to think about it.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
3 min read

Editor's note: This story was updated at 10:16 a.m. PDT.

WASHINGTON--A group of state prosecutors led by California on Tuesday told a federal judge that they plan to file a request that Microsoft antitrust oversight be extended until 2012.

Right now, most portions of the settlement reached with the Bush administration and state prosecutors in 2002 are set to expire November 12. Those provisions primarily deal with "middleware," or applications that sit on top of the operating system. One section relating to server protocol licensing has already been extended until 2009.

U.S. District Judge Colleen Kollar-Kotelly said she wasn't immediately prepared to rule on the California group's request or to reach conclusions about the consent decree's effectiveness over the past five years. U.S. Department of Justice and Microsoft attorneys told her they weren't immediately prepared to comment because they both heard about the proposal last week.

Microsoft attorney Rick Rule did say that it was "premature" to talk about extending the server protocol licensing a second time so long before its 2009 expiration date.

The California group's request, which is expected to be described in more detail in a written court filing by October 15, was hardly unexpected. A few weeks ago, that group of plaintiffs--which also includes Connecticut, Iowa, Kansas, Minnesota, Massachusetts and the District of Columbia--filed a report with the court that argued the agreement reached with the government has been largely ineffective in accomplishing its stated goals. They also suggested that a 10-year term, which they characterized as "standard" practice, for the consent decree would be preferable to the existing five-year life span, particularly since Microsoft only recently released Windows Vista.

"The key product markets here are still entirely dominated by Microsoft," Stephen Houck, the attorney representing California, told the judge on Tuesday. He argued that because Redmond's "market power remains undiminished" in the PC operating system and Web browser markets, "there's no guarantee that emerging technologies" will be protected unless the oversight period is extended.

Rule indicated it was curious that the California group was simultaneously decrying the effectiveness of the consent decree while calling for its extension. "We think the picture of the computer industry is much rosier," he told Kollar-Kotelly. "We think the decree has done its job."

The Justice Department and a group of state plaintiffs led by New York also told the judge they believe the decree has been doing its job, echoing statements made in their late-August filing.

"Obviously we'll continue to monitor matters," Justice Department attorney Aaron Hoag said, adding Vista has undergone testing by a technical committee that all parties agree has played a key role in enforcing the settlement.

Kollar-Kotelly, for her part, said she was "prepared to listen" to whether the oversight period should be lengthened but reminded the plaintiffs to consider what she called the "narrow" framework of previous court findings. Namely, Microsoft was never found to have illegally "obtained" a monopoly in the Intel-based operating system market, she said--rather, it was found to have maintained one by unlawful means. And the goal of the antitrust settlement was not to reduce the company's market share but to "improve" users' opportunities to get access to competing middleware, she added.

"If there are going to be requests to extend (the consent decree)," she said Tuesday, "it would have to be for an identifiable purpose the court would have to consider."