Antitrust Lawyer Blog Commentary on Current Developments

Justice Department Files Joint Status Report On Microsoft’s Compliance With The Final Judgments

On June 19, the DOJ reached an agreement with Microsoft Corporation to resolve a complaint by Google regarding Microsoft’s desktop search function in Windows Vista. In a joint filing with the court, the DOJ, 17 state Attorneys General, and the District of Columbia said that the agreement, which aims to promote user choice, will resolve any issues the complaint may raise under the final judgments. The desktop search functionality in Vista, known as “Instant Search,” allows users to enter a search query into a text box and receive a list of results from the user’s hard drive that contain the search term.

The Antitrust Division made its views known as part of a six-month joint status period to Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia. The report filed with the court is the eighth such report filed since the court entered the final judgments in November 2002.

In its filing, the DOJ also reported that Microsoft is continuing its efforts to improve the technical documentation provided to licensees under the final judgments. The DOJ said that the technical documentation project is proceeding on schedule and that it is encouraged by the quality of the documentation that is now being produced by Microsoft. The DOJ noted that Microsoft will be documenting additional protocols that were discovered as a result of an audit that the company conducted to ensure that all necessary protocols are included in the project. Further, the DOJ reported that the Technical Committee (“TC”) appointed under the final judgments has retained consulting firms to conduct a parallel review of Microsoft’s protocol audit process and to develop methods for searching the Windows source code to ensure that all necessary protocols are properly documented. The DOJ also informed the court that if the Milestone Longhorn portion of the documentation project is not substantially complete, the current royalty holiday will be extended by 18 months for all licensees. Under the royalty holiday, licensees are not required to pay any fees until government enforcers are satisfied that the rewritten technical documentation is substantially complete. In addition, if the government enforcers ultimately conclude that the entire set of revised technical documentation is not substantially complete, the royalty holiday will be extended by three years for all licensees.
The DOJ noted that the TC has identified a number of middleware-related “bugs” relating to Windows XP, Windows Media Player, and Internet Explorer, and it is expected that Microsoft will address the issues before the expiration of the relevant portions of the final judgments in November 2007.

The filing also states that after reviewing reports and testimony in a private class action lawsuit, Comes v. Microsoft Corp., the DOJ has found no evidence thus far that Microsoft has not fully disclosed the application programming interfaces required by the final judgments. However, the DOJ remains open to reviewing any additional information.
In the agreement to resolve the desktop search complaint, Microsoft must: