Microsoft Remedy Hearings: Judge Grills Lawyers as Hearings Wind Down

With witness testimony and cross-examination completed, the Microsoft remedy hearings continued this week on a slower schedule, with Judge Colleen Kollar-Kotelly grilling each side in anticipation of closing arguments on Friday. The judge had some harsh comments for both Microsoft's and the nonsettling states' lawyers, noting at one point that the software giant's continuing habit of commingling application code with that of Windows was likely an "additional violation" of federal antitrust law. But Kollar-Kotelly also sought justification for the states' strong sanction requests, noting that Microsoft's proposed settlement with the US Department of Justice (DOJ) appeared to "cure the ill effects of commingling."

The judge noted Wednesday that legal precedent gave her "broad powers" to impose sanctions against Microsoft, and that she could do so for acts the company performed outside the scope of the complaints in the original antitrust trial as long as those acts were of the same "type or class" as the illegal acts that the company was found guilty of.

Regarding the controversial request that Microsoft be required to offer a modular Windows version in which customers could permanently remove, and not just hide, middleware applications from Windows, lawyers for the nonsettling states argued that such a product was needed because the company was found guilty of illegally commingling products in order to harm competitors; only by requiring the company to remove commingled code from Windows would Microsoft be punished for the crime, they said. "To us \[the code commingling\] is an unremedied ongoing violation," said states attorney Steve Kuney.

Kollar-Kotelly also addressed another controversial aspect of the remedy hearings, where the nonsettling states introduced evidence that Microsoft was continuing its illegal behavior in new markets for interactive set-top boxes, cell phones, and other technologies. Microsoft argued that the hearings were required to stick with the original complaints, but the states believes that this evidence shows that the proposed DOJ settlement is ineffective because the company has simply continued the type of behavior that got it in trouble in the first place. The judge wasn't so sure. Noting that the states' definition of emerging markets was fairly broad, she said, "It sounds as if any new technology \[could\] be presented as a threat \[to Windows\]."

The judge is expected to issue a ruling sometime this summer.

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