Antitrust regulators won't scrutinize post-Windows 7 OS

Windows 7's fair game for oversight, but after that, its hands off, officials promise

Federal and state regulators have struck a deal with Microsoft that any version of Windows released after May 2011 will not be subject to the scrutiny mandated by a 2002 antitrust settlement.

As previously promised, however, Windows 7, will be put under the microscope.

Thursday, the Department of Justice (DOJ) filed documents (download PDF) with U.S. District Court Judge Colleen Kollar-Kotelly asking that she extend her oversight by at least 18 months, until May 12, 2011, to give Microsoft more time to finish documenting the communication protocols needed by competitors to craft software that works smoothly with Windows clients and servers.

Although Microsoft has consented to the extension -- and acknowledged that the regulators can later ask for another 18 months -- Kollar-Kotelly must approve the request.

The two sides have also agreed to clarify the status of future versions of Windows, the documents revealed.

The plaintiffs -- the DOJ and the various states that participated in the 2002 settlement -- disavowed any future extension request solely because of an impending Windows upgrade. "Plaintiffs and Microsoft have agreed to a clarifying modification of Section V.A that makes clear that the pending release of a new version of Windows will not provide grounds for Plaintiffs to exercise their right to seek a further extension of the Final Judgments for up to eighteen additional months beyond May 12, 2011," the papers stated.

Originally, the consent decree Microsoft signed was to expire in November 2007. But several states objected, and after months of legal back-and-forth, Kollar-Kotelly in January 2008 extended her oversight by another two years, to Nov. 12, 2009. At that time, however, she left the door open to continued monitoring, and Microsoft agreed that she could extend it for up to three more years, to Nov. 12, 2012. Microsoft and the states and federal officials also came to an agreement about future editions of Windows and the 2002 judgment. "Plaintiffs and Microsoft have agreed to modify Section VI.U to confirm the view of all parties that & a new version of the Windows client operating system that is distributed commercially only after the expiration of the Final Judgments would not be a Windows Operating System Product and would not be subject to the requirements of the Final Judgments," the documents read. "Plaintiffs would therefore have no reason to conduct a compliance review of a new version of Windows scheduled to be released after expiration of the Final Judgments."

Windows 7, however, is a different matter. Although Microsoft has not officially set a ship date for the still-in-development successor to the problem-plagued Windows Vista, it's expected to release the OS later this year, or at the very latest, early in 2010. A release candidate, the last milestone before Microsoft would certify the operating system as ready to duplicate, is expected next month.

That puts Windows 7 in the crosshairs, a fact the plaintiffs acknowledged in January when they said their three-member panel of computer experts would test Windows 7 "more thoroughly" than earlier versions. The experts have had their hands on Windows 7 for at least a full year.

But the regulators denied that they had asked Kollar-Kotelly for the extension to May 2011 in order to keep a watch on Windows 7. "Plaintiffs would like to emphasize that it is not the upcoming release of Windows 7 or the new technical documentation covering Windows 7 that led Plaintiffs to conclude that an extension of the Final Judgments was necessary," they said in a footnote in the documents filed Thursday.

Instead, the DOJ and the states cited the need for time to review Microsoft's complete documentation, which isn't slated for final delivery until June 30.

"Even if there were no pending release of Windows 7, Plaintiffs would recommend the same extension to the Final Judgments," the regulators said. "With that said, however, the TC will certainly review the current version of technical documentation, which includes information on all Windows Operating System Products up to Windows 7."

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Gregg Keizer

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