Court Asked to Modify Final Judgement Against Microsoft

Microsoft and the Department of Justice have formally requested that the final judgment issued in the U.S. antitrust litigation against the software giant be modified.

The proposed changes will reflect the two-year extension of the provisions related to Microsoft’s licensing program for communications protocols in the Windows desktop operating system.

A joint motion in this regard was submitted on Aug. 30 in the latest of a series of Joint Status Reports to Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia, who issued the final consent decree in 2002.

The original judgment was set to expire in the fall of 2007 and will now expire in the fall of 2009 if this latest motion is approved.

In addition, the motion states that the Department of Justice can request a further three-year extension, until November 12, 2012, with Microsoft agreeing not to oppose any such request.

Click here to read more about why Microsoft offered to share its Windows protocols past the court’s deadline.

In the May 2006 Joint Status Report, the Department of Justice’s Antitrust Division—which enforces the final judgment in conjunction with antitrust enforcers from 17 states and the District of Columbia—said an extension was necessary due to the difficulties Microsoft has been having in improving the technical documentation it provided to licensees.

The final judgment requires that Microsoft make available to competing server software developers, on reasonable and nondiscriminatory terms, certain technology used by Microsoft to make its server operating systems interoperate with client PCs running the Windows operating system.

The judgment also requires Microsoft to provide licensees with technical documentation to enable them to use this technology in their own server products so that those products work better with Windows.

The Department of Justice has previously told the court it is concerned with the quality of the technical documentation provided, as well as with the length of time it is taking Microsoft to improve that documentation.

“This extension will ensure that companies interested in licensing the communications protocols receive the benefit of complete and accurate documentation for the full period of time provided by the court’s final judgment,” J. Bruce McDonald, a deputy assistant attorney general in the Department’s Antitrust Division, said in May.

The European Union has also ordered Microsoft to share some communication protocols with its competitors and the Department of Justice wants the technical documentation being developed by Microsoft to be as consistent as possible, McDonald said.

Microsoft general counsel Brad Smith said in a statement released on May 12 that the company had not only voluntarily agreed to the extension, but would also, even after the 2009 expiration, “continue on a voluntary basis to document and license the communications protocols in the Windows desktop operating system that are used to interoperate with Windows server operating system products.”

Will Windows Live be the answer to Microsoft’s antitrust problems? Read more here.

But this is not the first time the company has promised new initiatives to appease critics and competitors of its response to both the U.S. and the European Commission judgments against it.

Earlier in 2006, Microsoft, based in Redmond, Wash., received lukewarm response to its offer to license all the Windows Server source code that applied to the antitrust requirements set out in the European Commission judgment.

Microsoft has also made changes to the protocol licensing program several times.

The latest proposed revisions to the final judgment have additional edits, including modifications that ensure the anti-retaliation principle is carried forward into the extended period of the judgment, as well as extending the terms of the members of the technical committee to correspond to this extended term.

This latest motion to modify the final judgment also includes a new section that requires Microsoft to maintain Bob Muglia, the senior vice president for its server and tools business, as head of the project to rewrite the MCPP (Microsoft Communications Protocol Program) technical documentation until that project is completed or the court orders otherwise.

The motion also argues that, as the proposed modifications are not significant, there is no need to make them available for public comment.

The modifications also “do not relieve Microsoft of any of its obligations under the original Final Judgment; rather, the proposed modifications only serve to effectuate the relief contained in the original Final Judgment by extending the term of some of its provisions,” the motion said.

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