The antitrust settlement between Microsoft and the U.S. Department of Justice needs to be amended because it doesn't ensure competition between Microsoft and its rivals, the state of Massachusetts and an IT industry group argued Tuesday.
Microsoft should have to release the code for its Internet Explorer browser and allow original equipment manufacturers to make any IE functions invisible to end users, argued Steven Kuney, lawyer for the state of Massachusetts, before the U.S. Court of Appeals for the District of Columbia Circuit.
Pushing Forward
Massachusetts is the lone remaining state appealing the Microsoft antitrust settlement, along with two industry groups--the Computer & Communications Industry Association (CCIA) and the Software & Information Industry Association (SIAA).
In addition, Robert Bork, lawyer for the CCIA, argued that a "special master" be appointed by the court to investigate any reports of violations of the antitrust settlement, approved by U.S. District Court Judge Colleen Kollar-Kotelly in November 2002. Microsoft and DOJ lawyers argued that the antitrust settlement was "clear and consistent."
Microsoft has fully acknowledged earlier court antitrust findings and is working to comply with those court orders, said Brad Smith, a Microsoft spokesperson. "We took steps together with the government to rectify each and every one of those issues," Smith said after the hearing.
Browser Battle
Bork and Kuney argued the requirement for Microsoft to separate the IE code from the Windows operating system isn't doing enough to encourage OEMs to replace IE with competing browsers. Microsoft wasn't required to completely remove the IE code because it adds functionality to programs such as the Help program, but Kuney argued that Microsoft should have to remove IE from any functions that could pop up on users' screens.
Without that kind of limit on IE, users will be confused about their browser choices, OEMs will have little incentive to install competing browsers, and developers will have no incentive to write software that works with competing products, Kuney said.
Removing the IE icon from desktops isn't enough to encourage competition, Bork added. He also argued that settlement requirements for Microsoft to disclose some of its APIs were inadequate. The result is a settlement that was "totally inadequate," he said. "This decision doesn't remedy a thing that Microsoft did," Bork added. "The government had this case cold and there was no reason to negotiate away what it did."
Massachusetts' Kuney asked for stiffer remedies requiring, among other things, that Microsoft open up the code of IE to Microsoft competitors. The IE browser enjoys a 90-plus percent market dominance, he added. "In order to remedy the problem,...something needs to be done about the current browser dominance," Kuney said.
IE Everywhere?
But Judge Harry Edwards asked if making IE's source code available would make IE "totally ubiquitous." "You would have placed Internet Explorer everywhere with your open-source remedy," Edwards told Kuney. But Kuney answered that the open-source remedy would create new versions of IE controlled by Microsoft competitors.
Lawyers on both sides faced tough questions from the six Appeals Court judges, prompting one observer to predict after the hearing that the court would send the settlement agreement back to the District Court for more sanctions. The judges did not reject the open-source remedy out of hand, although Microsoft lawyers called it extreme, said Robert Lande, law professor at the University of Baltimore and frequent Microsoft critic. "It looks like they're going to second-guess what the District Court did," Lande said.
Microsoft's Smith argued after the hearing that the antitrust settlement was doing what it was intended to do. "The settlement agreement was intended to give consumers more choices and that's precisely what it's doing." Smith couldn't answer, however, how many OEMs are installing competing browsers on their hardware.
