States Outline Case Against Microsoft

WASHINGTON—In the opening salvo of what could be an eight-week court-room battle, the lead lawyer for the states that had not signed onto the antitrust settlement between Microsoft Corp. and the U.S. Department of Justice laid out nearly a dozen proposals designed to keep the software giant from exercising its operating-system monopoly powers.

On Monday morning in U.S. District Court here, Brendan Sullivan—the Williams & Connolly lead attorney for the District of Columbia and nine states that are continuing to pursue antitrust charges against Microsoft—outlined the proposals in his opening statement.

One of the key proposals is that Microsoft, of Redmond, Wash., be required to issue an open source license for its Internet Explorer browser.

“Internet Explorer [IE] enjoys its position because of [Microsofts] illegal anti-competitive conduct over many years,” Sullivan told Judge Colleen Kollar-Kotelly. “IE is the fruit of Microsofts illegal actions, and it should be denied to them.”

Sullivan told the court that it is appropriate to mandate that IE be open sourced to ensure that others have access to the platform and to prevent Microsoft from benefiting further from IEs dominance.

Sullivan outlined a number of what he termed “barriers to entry” that Microsoft had put in place. While not citing Microsoft Chairman and Chief Software Architect Bill Gates by name, Sullivan said, “the chairman” was directly involved in promoting Internet Explorer, cutting deals with Apple Computer Inc. and threatening American Onlines Netscape division. Sullivan said all of these strategies were aimed at helping to commoditize Windows.

“And the word commoditize, on the campus of Microsoft, is like Kryptonite to Superman,” Sullivan quipped.

Another of the key remedy proposals sought by the states includes requiring Microsoft to distribute Java with Windows. Sullivan noted that Microsofts own strategy documentation includes the words “strategic objective: kill cross-platform Java by growing the polluted Java market.” The particular Microsoft document that includes this citation was not made available as an exhibit by press time.

Other state remedy proposals that Sullivan itemized include requiring Microsoft to continue to sell the version of Windows that precedes the most current release for a set period of time, putting safeguards in place so that Microsoft cannot retaliate against other companies, preventing Microsoft from using its licensing terms to stifle competition, forcing Microsoft to unify and standardize its Windows licensing terms, and requiring Microsoft to work with a special master to oversee its compliance with any court-ordered remedies.

The nine dissenting states that are pushing ahead with the remedy hearing are California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah and West Virginia. The District of Columbia is also part of this group.

While the current remedy hearing proceeds, Kollar-Kotelly is continuing to examine, in a separate proceeding, whether the settlement agreed upon by the Justice Department and nine other states in November best serves the interests of the public.

For more on the Microsoft antitrust case, check out eWEEKs special report,