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Although the cast is made primarily of well-known characters, mostly uttering already familiar lines, the latest scene in Microsoft Corp.s antitrust wrangling consists of thousands of pages of public comments, including some from renowned economists and politicians. After reviewing the comments in what is known as the Tunney Act proceeding, the court will determine whether the settlement is in the public interest.
The Association for Competitive Technology in Washington, one of dozens of parties filing in support of the settlement, introduced some new faces into the debate with a letter from former attorneys general Griffin Bell and Edwin Meese III, and former White House Counsel Boyden Gray. Bell, Meese and Gray bolstered ACTs position that the proposed settlement addresses the liabilities found by the Court of Appeals and that alternative remedies proposed by nine states pursuing litigation exceed the scope of the courts findings.
ACT contends that the litigating states remedies would be harmful to consumers by not allowing Microsoft to continue selling the Windows unified operating system, on which many software developers depend. The settlement proponents also maintain that the states plan for a Special Master to oversee the implementation of remedies would require the federal courts to assume a regulatory role.
Criticizing settlement opponents for siding with “very wealthy and successful” Microsoft competitors, ACT President Jonathan Zuck told reporters that his association represents the majority view. “I think it is very easy for us to turn this into an intellectual arms race in Washington,” Zuck said. “But the time for Sun and Oracle to get back to producing products and not lobbyists is now.”
Getting a jump-start on the debate, late last week the Project to Promote Competition in the Digital Age in Washington, one of dozens of parties opposing the settlement, filed arguments from renowned economists Joseph Stiglitz and Kenneth Arrow–both Nobel Prize winners. ProComp argued that the court should not rule on the Department of Justice settlement until after the litigating states hearing, which begins in mid-March. Among other flaws, the settlements provisions regarding API disclosure and manufacturer flexibility are insufficient to create competition in the middleware market, they said.
The American Antitrust Institute filed a complaint within a complaint, charging that Microsoft has not complied with the requirements of the Tunney Act itself and has kept the public from getting all required information. Like ProComp, AAI maintains that the settlement is ambiguous and would be difficult to implement. Calling it a “mockery of judicial power, since it fails to satisfy any of the remedial goals established by the Court of Appeals,” AAI said, “The lack of clarity will almost certainly compound the delay already present in the PFJ, since the inevitable difference of opinion cannot be resolved without extended litigation to determine the intent of the parties according to the rules of contract law,” AAI said in its comments.
The Department of Justice has 30 days to review and summarize the comments for the U.S. District Court for the District of Columbia. But as both sides contend that the others proposal would be difficult to implement, it is clear that whether the settlement is approved or not, the litigation will not be settled for a long time to come.
