Judge rejects Google's anti-Microsoft antitrust bid

Posted by Anne Broache

Editor's note: This story was updated at 10:38 a.m. PST
WASHINGTON--A federal judge refused on Tuesday to rule on a last-minute Google antitrust complaint about Windows Vista's desktop search, saying she trusted government attorneys who said they were already satisfied with Microsoft's planned changes.
U.S. District Judge Colleen Kollar-Kotelly said she would rely on the U.S. Department of Justice and state attorneys to alert her if any further action is needed to address antitrust allegations lodged on Monday by Google that the search function still won't allow for adequate "user choice."

"The plaintiffs, as far as I'm concerned, stand in the shoes of the consumer," Kollar-Kotelly said at a periodic status conference here. She added that Google "is not a party to the case."
Last week, Microsoft and its government antitrust overseers outlined a number of steps Redmond had agreed to take to address Google's ongoing concerns. Those moves included, among other things, adding a mechanism that would allow both computer makers and individuals to choose a default desktop search program--much as they can choose a rival browser or media player.

But Google argued in a filing on the eve of the already scheduled court hearing that it wasn't convinced those tweaks went far enough. The search giant also asked the judge to consider extending the November 12 expiration date for certain parts of the consent decree to ensure Microsoft was truly complying with an antitrust agreement dating back to 2002.
Kollar-Kotelly said she plans to rule on whether Google was allowed to file the seven-page brief it submitted to the court on Monday (Microsoft has opposed the filing as procedurally out-of-bounds). But she said she was "not going to take any position on it or comment on" the brief's content.

The judge did suggest, however, that perhaps Google lacks complete information about the proposed Vista changes. She said she expected the government attorneys and Microsoft to supply a fuller description than that revealed in their most joint recent court filing.
Google said after Tuesday's hearing that it was encouraged by what it viewed as the judge's sensitivity to its request for more information.

"As a result of our raising concerns about Vista desktop search, the Department of Justice and the states secured remedies from Microsoft that will provide consumers more choices than existed before," senior policy counsel Alan Davidson, who attended the hearing, said through a spokesman. "We are pleased that the authorities have provided important oversight here, and hope they will closely monitor the implementation to ensure that consumers' interests are served."

In their appearances before the judge, attorneys for the U.S. Department of Justice and state plaintiffs continued to emphasize they were satisfied the Google complaint had been fully resolved. They also said they expected to receive the beta version of the code in time to test it for compliance before the November expiration date. "Certainly if we don't, we will be back here" in court, said Justice Department attorney Aaron Hoag.
Microsoft attorney Charles Rule told the judge that he believed much "misinformation" has been circulating about the way Vista's desktop search works. Using a print-out of a desktop screenshot as a prop, he walked the courtroom audience through the planned changes and existing features.

For instance, contrary to what some have said, Vista's search indexer has been "designed to back off" when other applications are running, which should assuage any fears about third-party desktop search applications encountering problems, Rule said. He also said users can already set up their machines so that third-party desktop search options appear in the left-hand side of the Start menu and in menus that appear when the desktop is right-clicked--and said that wouldn't change.

Kollar-Kotelly indicated she was also pleased with the progress that Microsoft and antitrust authorities had reported in other areas, such as its communications protocol program, a required licensing regime aimed at helping third-party developers to create software that works with Windows.

"This has been a productive report and a productive hearing," she said near the event's close.
Microsoft general counsel Brad Smith said in a statement afterward that the company is "going to work hard to implement the resolution we reached with all the governments involved and presented to the court today."

The parties are currently due back in Kollar-Kotelly's courtroom on September 11, with a status report to be filed a few weeks beforehand.