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Microsoft Pri0

Welcome to Microsoft Pri0: That's Microspeak for top priority, and that's the news and observations you'll find here from Seattle Times reporter Sharon Chan.

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December 28, 2007 4:27 PM

Microsoft says states didn't offer enough evidence for continued oversight

Posted by Benjamin J. Romano

Just as we were about to slip off for another holiday weekend, a bit of predictable news on the Microsoft antitrust front: The company today filed a motion countering the states' arguments earlier this month that more provisions of the U.S. antitrust settlement -- already in overtime -- should be extended for another five years.

In a 10-page filing, Microsoft's attorneys break down the argument like this: One part of the settlement -- provisions related to the communications protocols that allow server software to interoperate with Windows desktop software -- has already been extended. The other provisions, the ones the states want to extend, involved a separate issue. They were designed to "provide opportunities for the development and distribution of platform software running on the Personal Computer desktop, such as Netscape's Navigator and Sun's Java Virtual Machine," Microsoft lawyers wrote. [Emphasis added.] "Those provisions have fulfilled their objectives and now are scheduled to expire."

Microsoft is saying that just because the communications protocols provisions are being extended doesn't mean the PC desktop provisions should as well, because they're not related and weren't designed to be. From today's filing PDF:

"Rather than providing legal or factual support, the [states] put forth hypothetical scenarios in which a Microsoft Communications Protocol Program licensee theoretically could benefit from the expiring provisions of the Final Judgment. However, there are real-world analogues to the [states'] hypothetical scenarios, including Apple's iTunes and Google. In the real world, these competitors have achieved success by relying on non-Microsoft protocols (for good business reasons) and have never seriously considered---much less licensed---Microsoft's Communications Protocols."

The states, of course, disagree with that interpretation and said as much in their Dec. 19 filing. They take a more holistic view of the purpose of the settlement:

"[T]he Final Judgment provisions ... are intended to promote development of successful competitive software products in the marketplace, whether those products run on servers, or on clients (PC operating systems), or on both." Here's a 12-page PDF of the states' arguments.

An interesting historical footnote to this ongoing and complex case is provided by today's news that AOL is going to pull the plug on Netscape Navigator. A passage from the AP's Netscape obituary:

Netscape's success also drew the attention of Microsoft, which quickly won market share by giving away its Internet Explorer browser for free with its flagship Windows operating system. The bundling prompted a Justice Department antitrust lawsuit and later a settlement with Microsoft.


Netscape eventually dropped fees for the software, but it was too late. Undone by IE, Netscape sold itself to AOL in a $10 billion deal completed in early 1999.

While IE killed off Netscape, the browser's open-source offspring, Firefox, has claimed a tenth of the market from Microsoft and took the lead on innovations such as tabbed browsing.

Judge Colleen Kollar-Kotelly is expected to rule on the extension of the settlement by the end of January.

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