Microsoft's tardiness for documentation extends DOJ oversight to 2009

By Scott M. Fulton, III, BetaNews

January 30, 2008, 1:33 PM

Scathing words yesterday from the federal judge overseeing Microsoft's compliance with its antitrust decree, accompanied an order that effectively extends the DOJ's oversight period into the next US presidential administration.

Apparently agreeing with the European Commission's assessment that Microsoft has yet to provide adequate documentation for its communications protocols, US District Judge Kathleen Kollar-Kotelly issued an order yesterday extending the Dept. of Justice's oversight period for the company by two years, until November 12, 2009.

"Although the technical documentation project is complex and novel, it is clear, at least to the Court, that Microsoft is culpable for this inexcusable delay," Judge Kollar-Kotelly wrote yesterday. While the company and the DOJ are to be commended for working out ways to resolve issues, and build a system for addressing concerns raised by states and other vendors, there's a good reason the Court hasn't issued its own opinion about Microsoft's overall documentation progress up to now, the judge said: Nobody asked it to.

"Practically speaking, Microsoft has never complied with § III.E [the section of the compliance decree mandating full and complete documentation]," the judge continued. "While Microsoft eventually proposed a plan that now appears to be producing the type of quality technical documentation required by § III.E, it did so in the face of mounting pressure from all Plaintiffs and the Court. In addition, there is no reason why the type of documentation finally being created could not have been created from the outset if the necessary resources had been devoted to the project."

Later, the judge wrote that the oversight period extension was not to be interpreted as a sanction or punishment against Microsoft, especially since it appears to be exhibiting model behavior by avoiding further litigation with the DOJ. But had the documentation process gotten off on the right foot to begin with, she wrote, there wouldn't be a need to extend the oversight period today.

And as a warning to others who argue more drastic measures should be taken against Microsoft, such as effectively rewriting the consent decree and extending oversight by five years or more, Judge Kollar-Kotelly said they haven't yet been able to take the time to realize the full benefits of full and complete documentation, which may yet be a possibility within the extended timeframe.

One of those parties seeking more drastic measures was the office of California Attorney General Jerry Brown. This morning, Brown's office released a statement to Bloomberg News essentially saying the A-G sought some kind of oversight extension, got one, and is happy with what he got.

A new Justice Department will be sworn in, in just under one year's time. Given the results of yesterday's Florida primaries, Microsoft may have reason to dread the prospects of any new DOJ it finds itself dealing with.

Long-time Senate Commerce Committee veteran John McCain (R - Ariz.), who won yesterday's Republican primary in Florida and may now be considered his party's frontrunner, has taken more than his share of swipes at Microsoft over the years. Eight years ago, when McCain was fighting for nomination against George W. Bush and Microsoft was a real campaign issue, McCain told the Wall Street Journal, "The only thing worse than regulation is an unregulated monopoly."

The following year, in support of Senate legislation to reduce the influence of lobbyists in Washington, McCain cited Microsoft even when he didn't need to. "Microsoft, before their anti-trust case, had almost no presence in Washington," he told the San Francisco Chronicle at the time. "Now, I almost don't know a lobbyist who's not on their payroll."

While on the Democratic side no absolute front-runner has yet emerged, it's worth noting that the case against Microsoft was prosecuted -- and, at least for a time, won -- during the administration of the husband of Sen. Hillary Clinton (D - NY).

Indeed, Microsoft's best shot at coming through 2009 unscathed could come under an administration headed by Barack Obama (D - Ill.). While Sen. Obama has yet to be questioned on the Microsoft matter specifically, his campaign's public stance on antitrust issues favors reforming antitrust law in order to prevent government oversight from interfering with competition.

"Obama will reinvigorate antitrust enforcement, which is how we ensure that capitalism works for consumers," reads a statement on his campaign's Web site. "He will take steps to ensure that antitrust law is not used as a tool to interfere with robust competition or undermine efficiency to the detriment of US consumers and businesses."