West Virginia Joins Massachusetts in Microsoft Appeal

The State of West Virginia announced Monday that it would join Massachusetts in appealing a US District Court decision that granted Microsoft a lenient sentence in its antitrust case. Last month, Judge Colleen Kollar-Kotelly rejected stronger remedies sought by the so-called non-settling states and green-lighted a proposed settlement reached by the software giant and the US Department of Justice (DOJ). The attorneys general of both West Virginia and Massachusetts have described this settlement as ineffectual and ridden with loopholes, and will now seek to have stricter remedies imposed on Microsoft.

"We have preserved our appeal," said West Virginia Attorney General Darrell V. McGraw on Monday, citing the judge's refusal to prevent Microsoft from commingling Windows and Internet Explorer (IE) software code, an act "the federal court of appeals specifically agreed was an antitrust violation," he said. West Virginia and Massachusetts will likely ask the US Court of Appeals for the District of Columbia to require Microsoft to sell a Windows version that lets consumers remove IE, Windows Media Player, and other software components, giving competitors a better chance to market their own products. Currently, McGraw says, Microsoft's dominant Windows operating system gives its bundled middleware an unfair advantage.

McGraw's argument is sound. When it reviewed the case last year, the US Court of Appeals for the District of Columbia upheld findings that Microsoft illegally commingled its Web browser code with Windows in an effort to destroy Netscape, and not for any perceived benefit to consumers. Judge Kollar-Kotelly then decided that hiding IE and other middleware components, rather than making them separate from Windows, was a sufficient penalty. Microsoft implemented this admittedly half-baked feature in Windows XP Service Pack 1 (SP1) and Windows 2000 SP3.

One concern for West Virginia, however, is money. Over the weekend, the Attorney General's office noted that the state would be hard pressed to find funding for the appeal. On Monday, however, McGraw said that the stakes were too high to back down. "No reputable government should plea poverty and allow an adjudicated lawbreaker to retain their ill-gotten gains," he said. Massachusetts Attorney General Tom Reilly, an outspoken Microsoft critic who announced his state's appeal Friday, said Monday he was "pleased and grateful" to have West Virginia onboard.

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