Thursday, 31 January 2008 12:48

Microsoft consent decree extended

Judge Colleen Kollar-Kotelly has ordered an extension of the consent decree settling the anti-trust action against Microsoft until November 12, 2009.

The decree was originally set to expire on November 12, 2007, and some provisions have already been extended until November 2009.

The action was brought by multiple US states, including California, New York, Massachusetts, Maryland and Florida, and they have been seeking an extension to November 2012.

Among the issues was a claim that Microsoft was acting anticompetitively by failing to release technical documentation relating to communication protocols used between Windows software and Microsoft server operating systems.

That documentation has still not been released to licensees "in a certifiably complete, accurate, and useable form" five years after judgement. Although negotiations between Microsoft and the states over the preparation of the documentation meant the court was never asked to rule that the software company had failed to comply with the decree, Kollar-Kotelly noted that "Although the technical documentation project is complex and novel, it is clear, at least to the Court, that Microsoft is culpable for this inexcusable delay."

The court found that the states have not begun to receive the benefit of the decree, and therefore rejected Microsoft's position that the original five-year term should stand. The two-year extension was chosen because the documentation is expected to be completed by November 2009.

Kollar-Kotelly's decision leaves room for the states to apply for a further extension to November 2012.


In a brief statement, Microsoft senior vice president and general counsel Brad Smith said "We will continue to comply fully with the consent decree. We are gratified that the court recognized our extensive efforts to work cooperatively with the large number of government agencies involved."

While Kollar-Kotelly did commend Microsoft for its willingness to negotiate workable solutions rather than engaging in costly litigation, she observed in her judgement that "compliance-related issues have arisen regarding virtually every aspect of Section III [of the consent decree]", that "Microsoft did not proactively bring the problems with its technical documentation to the Court’s attention," and that "While Microsoft eventually proposed the RESET plan [aimed at finally getting usable communications documentation into the hands of developers in a finite time], and has since cooperated in carrying it out, it did so in the face of mounting pressure from all Plaintiffs and the Court."

On that last point, the judge also found that "there is no reason why the type of documentation finally being created under the RESET plan could not have been created from the outset if the necessary resources had been devoted [by Microsoft]."

Smith also pointed out that "We built Windows Vista in compliance with these rules, and we will continue to adhere to the decree's requirements." The judge's comments  noted that the states "were actually able to effect changes to Vista in advance of its release, particularly with respect to the methods for setting default middleware." (The consent decree meant Windows users had to be given the ability to specify that certain actions would by default run software other than that provided by Microsoft, for example Firefox in place of Internet Explorer.)

Other provisions of the consent decree make it easier for Microsoft's OEM customers to configure Windows as they see fit, and to ship computers with software (including operating systems) that are not Microsoft products; and for software developers to create, promote or support software that competes with Microsoft products.

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Stephen Withers

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Stephen Withers is one of Australia¹s most experienced IT journalists, having begun his career in the days of 8-bit 'microcomputers'. He covers the gamut from gadgets to enterprise systems. In previous lives he has been an academic, a systems programmer, an IT support manager, and an online services manager. Stephen holds an honours degree in Management Sciences and a PhD in Industrial and Business Studies.

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