Google Escalates Antitrust Battle With Microsoft

Jun 26, 10:48 AM

Current Headlines: By Benjamin J. Romano, The Seattle Times

Jun. 26--Google, unsatisfied with changes Microsoft is making to Windows Vista's desktop search feature in response to an antitrust complaint, is pushing for further changes and more judicial oversight of Microsoft's practices.

The escalation of the antitrust battle between the two technology giants came Monday in a filing with the court that oversees Microsoft's landmark 2001 antitrust settlement with the government, major portions of which are to expire in November.

Today, U.S. District Court Judge Colleen Kollar-Kotelly will hear from Microsoft and government lawyers on the status of that settlement at a regularly scheduled conference in Washington, D.C.

There will be plenty to talk about, including the original complaint Google filed, the changes Microsoft and the government agreed to last week, and this latest Google filing.

Beginning last year, Google complained to the Department of Justice that Windows Vista's built-in desktop search -- a tool to quickly find files stored on a computer hard drive -- limited consumer choice and violated terms of the 2001 settlement.

Microsoft disputed those claims. But after months of negotiations with the government lawyers overseeing the settlement, it agreed last week to make significant changes to Vista's desktop search, changes it says went beyond the antitrust settlement.

Microsoft General Counsel Brad Smith said in an interview Monday that the company "already went the extra mile and worked things out with 19 different government agencies" -- the plaintiffs in the settlement.

David Drummond, Google's chief legal officer, called those changes "a positive step" but said they don't go far enough "to ensure meaningful choice" for consumers.

"Ultimately, these issues raise the need for continued judicial oversight of Microsoft's practices, to ensure that consumers' interests are best served," Drummond said in an e-mailed statement.

Google's filing Monday involved a motion to gain standing in the antitrust settlement and thereby have Kollar-Kotelly consider its amicus brief -- essentially a request by a third party to intervene in the settlement.

To date, the judge has been hesitant to allow other parties to gain standing in the case, and Microsoft fired back late Monday with a filing that argues why Google should not be allowed to participate.

If Google's standing is denied, the amicus brief will be little more than a public-relations move, as some critics have already branded it.

But if Google gains standing, and it persuades the judge and the plaintiffs, this waning antitrust case that has occupied legions of lawyers for more than a decade could get new life.

"Little has changed in the last five years in terms of Microsoft's dominance of the desktop operating system ... and the [settlement] has done very little other than prohibit the most egregious forms of Microsoft's anticompetitive conduct -- all of which will be back in play come this November," Andrew Gavil, a Howard University law professor who has followed the antitrust case closely, said in an e-mail.

"So Google's end game here is unclear," Gavil said. "Maybe an extension of even such a weak decree, with some continuing Department of Justice oversight [which could extend into a new administration] is better than nothing. ... It will be interesting to see how the judge reacts to the request."

A New York Times story earlier this month, which first revealed publicly that Google was the source of the desktop-search complaint, cited examples of the Bush administration's Justice Department defending Microsoft on antitrust issues.

In one case, the top Justice Department antitrust official urged the other plaintiffs in the settlement to reject the Google complaint.

Attorney General Alberto Gonzales is scheduled to speak in Seattle on Wednesday to TechNet, a lobbying group whose members include executives from technology companies including Google and Microsoft.

Microsoft's Smith sounded unwilling to give more ground to Google.

The government lawyers "have accepted what we've done, and the fact that Google insists on even more is not in our view cause to do more, when in fact everyone else is already satisfied," he said. "... I think that should put the matter to rest."

The specific changes to desktop search in Vista, outlined in a joint status report from Microsoft and the government lawyers last week, include:

--Allowing competitors' products to be set as the default choice for finding files stored locally on a computer. Vista will still handle desktop search in some cases, such as in Explorer and Control Panel windows, where the search doesn't open a new window to display results. In those cases, Vista will also display links to the default search engine.

--Better documenting and publicizing to software developers the features of Vista's indexing function, which creates a quickly searchable database of files stored on the computer for easy access by search. Google complained that the Vista indexer could not be disabled and slowed performance.

Microsoft said its indexer could be disabled but needn't be because it was designed to stop using computing resources when other applications are running.

Microsoft agreed to publish more details to help software developers build programs that take advantage of this.

In its amicus brief, Google said it did not have enough information to evaluate the proposed remedies "and how they might affect user choice."

The company went on to detail other ways it contends Microsoft gives its own desktop-search tool advantages against those of competitors.

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