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By Caron Carlson  |  Posted 2003-05-06 Print this article Print

In a brief filed on behalf of the Computer & Communications Industry Association and the Software & Information Industry Association, which represent Microsoft rivals, Bork and Starr criticized the district court for denying the trade groups request to intervene in the appeal. They also lambasted the remedy settlement, charging that it would not prevent Microsoft from illegally driving new middleware technology out of the market. "Microsofts negotiations with the Government produced loopholes the size of triumphal arches through which Microsoft may march undeterred by the antitrust laws," Bork and Starr wrote.
CCIA and SIIA take issue with the API and protocol disclosure provisions in addition to the commingling provision. Because it allows Microsoft to use its own discretion in defining many of the disclosure obligations, including the definitions of "Windows Operating System" and "Microsoft Middleware," the provisions are meaningless, according to Bork and Starr.
"By giving Microsoft the power to define the scope of its obligations and requiring the disclosure only of technical information needed to run Microsofts own middleware, the decree allows Microsoft to deprive would-be competitors with broader or better products of the information they need to ensure that those products will run on Windows," they wrote. The trade groups also questioned the stance of Judge Colleen Kollar-Kotelly, who approved the remedy settlement last November, on a number of procedural issues. Following the terrorist attacks of Sept. 11, Kollar-Kotelly ordered the parties to begin intensive settlement negotiations, but the "court did not explain how the issues here were affected by the attacks of September 11 and the subsequent `time of rapid national change," Bork and Starr wrote. Also, CCIA and SIIA raised questions about the propriety of Microsofts lobbying and its incomplete disclosure about that lobbying. According to CCIA and SIIA, since 1998, Microsoft had engaged in intense lobbying campaign to end the antitrust litigation, but it did not fully divulge the contacts in Congress or the executive branch during the Tunney Act proceeding. "[T]he court ignored widespread public criticism of the parties disclosures and excused what it admitted were borderline filings by both sides," Bork and Starr wrote, "The breadth of Microsofts effort to use political pressure to curtail this case is extraordinary." Latest Microsoft News:


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