Microsoft's Antitrust Settlement Sharply Questioned

Led by the Attorney General of Massachusetts, Microsoft's antitrust adversaries had another day in court to protest the provisions of the settlement the company worked out with the Bush administration. The antitrust battle was joined Tuesday in oral arguments before the six-judge panel of the U.S. Circuit Court for the District of Columbia.

Attorney General Tom Reilly of Massachusetts said the settlement was so wrong-headed that its approval by U.S. District Court Judge Colleen Kollar-Kotelly represented an abuse of her discretion. Massachusetts is the lone holdout state continuing to protest the settlement.

"Microsoft has been repeatedly found guilty of antitrust violations but it has not yet been held accountable for its actions," Reilly said in a statement made before his court appearance. "It continues to crush innovation, competition, and consumer choice in the software industry."

Robert Bork, a former appeals judge himself, represented Microsoft rivals and likewise complained about the settlement, calling it "utterly inadequate." He said it was unusual that the government settled the case after it had won courtroom triumphs against Microsoft. "The government had this case cold," Bork said, "and there was no reason to negotiate away the things it negotiated away."

Indeed, the Justice Department, as the enforcer of the antitrust laws, was cast in the awkward position Tuesday of defending Microsoft and its settlement with the government. Deborah Majoras, a deputy assistant attorney general at the Justice Department, said it was Bork who was "simply wrong" and defended the settlement as giving "prompt, certain, and effective relief."

Reilly and others zeroed in on Microsoft's Windows operating system. Reilly favors restricting Microsoft to selling a version of Windows without its merged programs for browsing, E-mail, and the like. Majoras countered that the removal of some of the individual software programs from Windows could cause some of the software to malfunction. Her description brought praise from Judge Douglas Ginsburg.

The appeals court has sided with Microsoft in the past, removing two judges who had ruled against the company. One of them, Judge Thomas Penfield Jackson, saw the appeals court throw out his contempt ruling against Microsoft. In addition, the court blocked Jackson's attempt to break up Microsoft.

The appeals court, however, agreed with Jackson when he ruled that Microsoft had a monopoly with Windows and asked Kollar-Kotelly to oversee new sanctions.