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Microsoft has lost another round in antitrust court, with a new ruling extending by two years federal court oversight of the final judgments issued in the landmark U.S. antitrust case against the software giant.
The decision extends those provisions of the final judgments that would have expired in November 2007 to Nov. 12, 2009, and is based on “the extreme and unforeseen delay in the availability of complete, accurate, and useable technical documentation relating to the communications protocols that Microsoft is required to make available to licensees under Section III.E of the Final Judgments,” Judge Colleen Kollar-Kotelly said in an executive summary of the judgment released Jan. 29.
But the court’s decision is less than the five-year extension that seven states -California, Connecticut, Iowa, Kansas, Minnesota and Massachusetts-and the District of Columbia had argued for when they claimed Microsoft remained a monopoly.
When the court first entered the final judgments in November 2002, it and the other parties all expected Microsoft to release by February 2003 technical documentation required under Section III.E, the executive summary said.
But that did not happen. “More than five years later, the technical documentation is still not available to licensees in a complete, useable, and certifiably accurate form, despite the fact that III.E was intended to be the -most forward-looking provision’ in the Court’s remedy,” Kollar-Kotelly said.
Inexcusable Delay
While she acknowledged that the technical documentation project was complex, Kollar-Kotelly made no bones about the fact that Microsoft is culpable for “this inexcusable delay. … Practically speaking, Microsoft has never complied with ??? III.E,” she said.
And while Microsoft eventually proposed a plan that now appears to be producing the type of quality technical documentation required by ??? III.E, it did so in the face of mounting pressure from all the plaintiffs and the court, the judge said.
There was no reason why the type of documentation being created now could not have been created from the start if the necessary resources had been devoted to the project, she said.
“As a result of the delay, the provisions of the Final Judgments have not yet had the chance to operate together as the comprehensive remedy the Court and the parties envisioned when the Final Judgments were entered,” Kollar-Kotelly said.
But, in spite of all that, the extension should not be viewed as a sanction against Microsoft, but rather as “a means to allow the respective provisions of the Final Judgments the opportunity to operate together towards maximizing Section III.E’s procompetitive potential,” she said in the judgment.
In response, Microsoft issued a statement from Brad Smith, its senior vice president and general counsel, saying that it will continue to comply fully with the consent decree.
Smith tried to put a positive spin on the judgment, saying the Microsoft is “gratified that the court recognized our extensive efforts to work cooperatively with the large number of government agencies involved. We built Windows Vista in compliance with these rules, and we will continue to adhere to the decree’s requirements,” he said.
Kollar-Kotelly did not rule out the possibility of extending the final judgments even further, saying that her decision not to extend the final judgments beyond Nov. 12, 2009, does not preclude the possibility of doing so in the future.