In oral arguments yesterday before the US Court of Appeals for the District of Columbia Circuit, lawyers representing the state of Massachusetts and Microsoft sparred over the merits of the software giant's antitrust settlement. The hearing, which lasted about 3 hours, included some heavy questioning from six appellate court judges; many of the questions clearly favored Massachusetts. Massachusetts is the lone state still pursuing Microsoft for its antitrust abuses. The state argues that the company's settlement is ineffective and does nothing to address the problems that got Microsoft into trouble in the first place.
"\[The question is\], \[is Microsoft\] going to be held accountable?" Massachusetts Attorney General Tom Reilly asked. "It is offensive that Microsoft still doesn't think they did anything wrong." Massachusetts attorney Steven Kuney told the judges that the Microsoft settlement was "ineffective in accomplishing any remedial objectives that this court requested." The US Court of Appeals for the District of Columbia Circuit, you might recall, upheld Judge Thomas Penfield Jackson's original guilty ruling against Microsoft but rejected his breakup judgment and sent the case back to the district court. Judge Colleen Kollar-Kotelly presided over the second case and eventually oversaw Microsoft's settlement. Kuney said yesterday that Judge Kollar-Kotelly's settlement didn't force Microsoft to relinquish the "fruits" of its anticompetitive activities, including its dominant Web browser, which was the impetus for the original case. One judge clearly agreed that some kind of "penance" is in order. "Otherwise, monopolists could squelch all comers without consequence," she said.
Microsoft attorney Michael Lacovara drew some inadvertent laughter when he said that there is "no evidence that Microsoft's share in the browser market has ever been linked to anticompetitive conduct." One of the judges immediately challenged the comment, causing Lacovara to sheepishly admit he had overspoken. Reilly couldn't have scripted a better performance.
One judge noted that PC makers still aren't bundling competitive products with their PCs, possibly because they still fear repercussions from Microsoft. Another judge noted that because Microsoft already bundles various software products in Windows, installing third-party programs that do the same thing would only confuse consumers.
Microsoft did win a few exchanges. After asking how removing certain components from Windows could cause problems, Chief Judge Douglas Ginsburg praised Deborah Platt Majoras, a deputy assistant attorney general at the US Department of Justice (DOJ), for her "very powerful answer," which supported Microsoft's contention that removing Microsoft Internet Explorer (IE) from Windows causes other applications to stop working.