Today, the state of Massachusetts opens its appeal of the Microsoft antitrust ruling in the US Court of Appeals for the District of Columbia Circuit Court. Massachusetts will argue that Microsoft's settlement with the US government and several US states is fundamentally flawed, as the company's behavior since the settlement has shown. In addition, the state will argue that US District Court Judge Colleen Kollar-Kotelly misunderstood the technical aspects of the case, handing the software giant a soft remedy that doesn't address the concerns the original case raised. And in a separate but related case, two industry trade groups will also appeal the Microsoft settlement to the same group of appellate court judges, arguing that the settlement isn't in the public interest.
"\[The settlement\] fails to stop Microsoft's illegal conduct and does nothing to restore competition to the monopolized market or to prevent Microsoft from engaging in similar means to the same unlawful end," wrote Massachusetts Attorney General Thomas Reilly in a brief related to the appeal. Predictably, Microsoft disagrees. "The settlement is a proper one--tough but fair," said Microsoft General Counsel Brad Smith. "It was a technical and legally complex settlement, not an approach that makes sense for one government to upset after 20 other governments have already agreed to its terms."
Although you might think that Massachusetts and the two trade groups face an uphill struggle, recent events have conspired to cast doubts on the settlement's potency, a possibility that even the US Department of Justice (DOJ) and Judge Kollar-Kotelly have publicly questioned. For example, only nine companies have licensed the Windows communications technologies the court required Microsoft to provide, and lawyers are now investigating why. Kollar-Kotelly has given the lawyers until January to report. But Reilly says this problem demonstrates "most clearly the ineffectual nature of the court's remedy," and he'll ask the appellate court to require Microsoft to unbundle from Windows programs such as Microsoft Internet Explorer (IE) and Windows Media Player (WMP).