Settlement Critics: DOJ "Surrended"

Five parties opposed to the Microsoft settlement presented their case late in the day Wednesday to Judge Colleen Kollar-Kotelly, who is presiding over hearings to determine whether she should sign off on Microsoft's controversial proposed settlement. Representatives of former Baby Bell SBC Communications and four trade groups told the judge that the settlement is not in the public interest and that she should reject the deal. And while Kollar-Kotelly did little to betray her opinion about the case, her rejection of a Microsoft request to issue a speedy decision cheered critics of the deal, as did the judge's concerns that the settlement provided only limited sanctions.

Judge Robert Bork, who is representing an industry group called ProComp, called the settlement a "surrender" by the US Department of Justice (DOJ), stating that it is "completely deficient" and "deeply harmful to the public interest." Bork's most compelling argument centered around the charge of code commingling, where Microsoft was found to have integrated Internet Explorer in Windows solely to harm competition, not to help consumers or for any valid technical reason. A June Appellate Court ruling, Bork said, upheld the decision that Microsoft's code commingling was an anticompetitive act, "and yet this decree does not deal with it at all." Bork said. "So Microsoft remains free to bolt products together. The proposed settlement doesn't come anywhere near meeting a public interest standard."

To defend against this central complaint, a lawyer representing the settling states said that Microsoft would be force to reveal middleware APIs, so that the company's competitors could write software that would work as well as integrated products, like Internet Explorer (IE), Windows Media Player (WMP), and Windows Messenger. But representatives of the anti-Microsoft crowd retorted that such a provision was ineffective if Microsoft's bundled products remained in Windows. "Microsoft was successful because it killed the baby threats in the crib," said attorney Donald Flexner, who represents SBC Communications, which is concerned that Microsoft will attempt to move its dominance into the Internet services market. "When Microsoft can extinguish threats to its operating system, it means that it is a rapacious monopoly that will be immune from attempts to dissipate its market power."

Disagreement over the settlement was heated at times. At one point, Microsoft attorney John Warden referred to the numerous anti-settlement criticisms as "whines" seeking "a grab bag of personal advantages for Microsoft competitors."

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