Microsoft Concedes to Google and States, Will Change Vista Search

By Scott M. Fulton, III, BetaNews

June 20, 2007, 10:34 AM

In agreeing to make what could be described technically as a minor change to the way it handles its options for consumer desktop search, Microsoft last night may have made its most symbolically significant statement to date with regard to its current stance in the technology market: It backed down, in response to a complaint from Google that its placement of desktop search capabilities within Windows Vista constituted a breach of its antitrust settlement agreement with the US and states' governments regarding middleware.

The question centered around Windows Desktop Search, a feature built into Vista but which essentially competes with Google Desktop Search, which a user must download separately and install intentionally. Google filed a formal complaint, which it never formally acknowledged or even publicly mentioned, but whose existence was finally entered into the public record yesterday by the US Justice Dept.

The issuance of its quarterly Joint Status Report on Microsoft's cooperation with its antitrust settlement, served as the first public word that Google made a complaint in the first place.

The fact that Google made this complaint, coupled with the appearance that the Justice Dept. and Microsoft appeared to be jointly doing nothing to address it, led many states' attorneys general who were previously cooperating with the DOJ to consider separating their cases and proceeding against Microsoft on their own.

"Google's complaint contends that desktop search in Windows Vista is a new 'Microsoft Middleware Product' under the Final Judgments," reads last night's Joint Status Report. The reason that's important is because the whole issue of what constitutes middleware was the turning point for Microsoft in its original US antitrust case, and what turned a potentially company-splitting judgment against it into a settlement.

Back in the late '90s, the US Government argued that middleware constituted essential operating system services, which manufacturers other than Microsoft could craft for multiple operating systems, though which the design of Windows intentionally prevented them from doing. Though the district court initially agreed with that argument in principle, after remand by the appeals court, a new judge dismissed that argument altogether, in favor of a new definition it admitted that Microsoft suggested for it.

"Plaintiffs' [the government's] definition of 'middleware' is irreparably flawed," read an executive summary of the court's revised final judgment in November 2002, "in its attempt to capture within their parameters all software that exposes even a single API." In accepting Microsoft's substitute definition, it created two official classes of middleware: the type made by Microsoft, and the type not made by Microsoft.

With regard to the first type, Microsoft was ordered never to preclude an OEM (a company of any type that assembles computers) from making default installation choices that favor the second type over the first.

For instance, if HP wanted to include a Lotus product for e-mail rather than Outlook Express (back when there was such a thing), it could, and Microsoft could not retaliate by giving HP less-than-favorable licensing treatment or marketing consideration, or any other retaliatory measure.

The court's 2002 Executive Summary went on to describe one aspect of what middleware could be, as it evolved: "Other future technologies captured in the definition of 'Microsoft Middleware Product,"' the court wrote, "are those functionalities which are both distributed as part of Windows and distributed separately from Windows by Microsoft, trademarked by Microsoft, and which compete with third-party middleware products."

Windows Desktop Search began its existence as one such product: an add-on to Windows XP. But Microsoft extended its indexing capability directly into the search functionality of Vista. That should not have been a surprise to anyone, since those extensions were obvious in the product's first public betas.

But this is where Google cried foul, even though it may have waited over a year to do so: It saw Microsoft as grafting middleware directly to Vista, in a way that may have harmed Google in one important way: It would preclude OEMs from setting up computers to install Google Desktop Search instead.

Next: The historic terms of Microsoft's concessions