Judge questions impact of settlement

A US district judge praised efforts by Microsoft to improve its technical documentation, as required by an antitrust judgment.

A U.S. district court judge on Wednesday praised Microsoft for efforts to improve technical documentation for its communications protocols, but questioned the effect in the marketplace of her final judgment in the U.S. government's antitrust case against the software giant.

Judge Colleen Kollar-Kotelly, of the U.S. District Court for the District of Columbia, said she saw progress in Microsoft's compliance with her November 2002 antitrust judgment, but she also asked lawyers at a compliance status hearing "what, if any, effect" the judgment has had on the software market.

There's "no demonstrable change" in Microsoft's dominance of the operating system market, answered Renata Hesse, an antitrust lawyer at the U.S. Department of Justice (DOJ). The open-source Firefox browser has cut into Microsoft Internet Explorer's market share, but it's difficult to tell how much of an impact the judgment has had, Hesse added.

More competing products are likely on the way, Hesse said. "It is a question we ask ourselves frequently, but we don't have a good answer for," Hesse said of the judge's question. "On the other hand, it appears that there are people now building products that should be better able to interoperate with the Microsoft operating system."

Microsoft lawyer Charles Rule noted that since October, two new companies have licensed Microsoft's communication protocols, bringing the total number of licensees to 21 since the judgment. The question of whether more competing software products will be the result is one the "marketplace has to answer, as opposed to the court," Rule said.

Under the judgment, computer-makers are free to bundle other vendors' software with their products, and some have, Rule added.

"I think we should never lose sight of the fact that all of those provisions of the decree have been implemented," Rule said. "All of these benefits are out there, and that was part of the environment in which Firefox was introduced."

The goal of the judgment was not to "hinder Microsoft or ensure that its market share declines," Rule added.

Kollar-Kotelly agreed, saying her goal was to give Microsoft competitors a more even playing field than they had in the past. "How the marketplace responds to that is not under the control of this court." she said. "I have a feeling it's going to be a long-term process in terms of knowing what happens in the marketplace."

Kollar-Kotelly focused on long-standing complaints over technical documentation during much of the hearing. The judge noted that two projects announced by Microsoft, the DOJ and the state plaintiffs in the antitrust case should have a "significant impact" on the quality of the documentation, which supports communication protocols Microsoft was required to license to competitors in the final judgment.

In court documents filed in January, Microsoft described two projects it intends to launch to address criticisms about the documentation. Microsoft, with help from the plaintiffs, will create protocol implementations of each task covered by the communications protocol licensing program, and separately, it will develop a series of protocol parsers available to licensees. Kollar-Kotelly scheduled a June 10 hearing to check the status of both projects.

"I think this has come a long way, certainly from the beginning," the judge said.

But Stephen Houck, a lawyer for the California group of state plaintiffs in the case, said the two projects could still cause disagreements between the plaintiffs and Microsoft, and the two sides could end up back in court for Kollar-Kotelly to referee the dispute.

Houck also complained that Microsoft has been slow in fixing errors in the documentation, a charge that Rule disputed. "We wouldn't be in this situation with the technical documentation if Microsoft hadn't delayed in providing good and complete documentation," Houck said. "It should've been done a couple of years ago."

Rule answered that Microsoft has made a significant effort to publish and improve the documentation. "No one ever contended the documentation was perfect, but frankly, no documentation is ever perfect," he said.

Houck, like Hesse, also questioned the effect of the judgment so far. Firefox has made gains in the browser market, he said, but Internet Explorer still has a market share of about 90 percent. He attributed most of Firefox's gains to complaints about Internet Explorer and positive reviews of the new browser, not the judgment.

"We can only hope -- there's no guarantee -- that somebody will use this (documentation) to create a competing product," Houck said.

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