A group of state plaintiffs in the U.S. Microsoft antitrust case will ask for a five-year extension of a large portion of the 2002 judgment against the company, the group’s lawyer said Tuesday.
California, Connecticut, Iowa, Kansas, Minnesota, Massachusetts and the District of Columbia — known as the “California group” — want an extension of most of the middleware portions of the judgment, said Stephen Houck, a lawyer for the group. Microsoft still retains a huge lead in the operating system and Web browser markets, he said.
“Microsoft continues to have a stranglehold over the two products … that nearly all consumers use,” Houck said during an antitrust compliance hearing in U.S. District Court for the District of Columbia. “Very little has happened in five years … in those markets.”
The California group of states — the larger of two groups of states that sued Microsoft for antitrust violations — will ask for an extension of all the middleware portions of the antitrust judgement, except for a section that governs the royalties Microsoft can charge PC manufacturers for the Windows operating system. Most of the antitrust judgment was scheduled to expire in November.
Microsoft lawyer Rick Rule said the company would need time to respond to Houck’s proposal. Microsoft first heard of the plan to ask for an extension on Friday, he said, and the California group plans to file a formal extension request with the court in mid-October.
Rule seemed to suggest Microsoft would fight the five-year extension. U.S. District Court Judge Colleen Kollar-Kotelly declined to impose a 10-year judgment in 2002, he said. “We think the picture of the computer industry is much rosier,” Rule added. “We think it’s clear that the decree has done its job.”
Microsoft spokesman Jack Evans said the company will respond in more detail after it has seen the extension request. “We’re a bit surprised that a few states are now requesting an extension of the consent decree, since they indicated just last month that they’re not too fond of it,” Evans said.
In August 2006, Microsoft already agreed to an extension of the section of the judgment requiring it to make its communications protocols available to other software vendors. Microsoft’s efforts to fix technical documentation for the protocols have run into several delays. Houck on Tuesday asked Kollar-Kotelly to extend the communications protocol section of the judgment until 2012.
The California group does not “have any confidence” Microsoft will continue to improve the communications protocol program without oversight, Houck said. An independent auditor’s report just issued questions whether Microsoft has released all the protocols mandated in the judgment, he added.
The California group’s extension proposal comes after the U.S. Department of Justice and the New York group of states filed briefs last month saying the antitrust judgment has done its job. “There have been a number of developments in the competitive landscape … that suggest that the Final Judgments are accomplishing their stated goal of fostering competitive conditions among middleware products, unimpeded by anticompetitive exclusionary obstacles erected by Microsoft,” said the report from the DOJ and New York group, which includes five states.
But Houck Tuesday disputed that assessment. At the time of the judgment, a handful of PC vendors were preinstalling a competing Web browser on PCs, he said. Today, no major ones are, he said.
In addition, the communications protocol program was supposed to be finished early in the judgment’s life, and its delays have kept software vendors from fully using the program, Houck said.
“The whole thing … doesn’t have an opportunity to work as the court intended,” he said. “It’s very clear that the product markets at issue in this case have not moved rapidly at all.”
Kollar-Kotelly said she would delay final reports on the judgment while she considers the California group’s request. Microsoft and the plaintiffs were scheduled to meet with her Nov. 6 to discuss the final reports, but she will now consider the extension request on that date.
Before Houck made his request, the judge said she was opposed to extending the judgment without a good reason. It was hard to predict the impact the judgment would have, she added.
“The final chapter of the final judgment has not been written,” Kollar-Kotelly said.
The California group wants Kollar-Kotelly to extend all of section 3 of the judgment except for section 3B, dealing with manufacturer royalties. The extended provision would include:
— A prohibition against Microsoft retaliating against PC vendors for including competing software on PCs;
— A prohibition against Microsoft restricting PC vendors from putting competing middleware in the start menu or making them defaults;
— A requirement that Microsoft give APIs (application programming interfaces) for its middleware to PC vendors and independent software vendors.