DoJ Says Microsoft Cooperating but Slow

As they prepare for their regular quarterly meeting with the judge next week, lawyers for the U.S. Department of Justice (DoJ) and Microsoft Tuesday filed the two sides’ quarterly joint report regarding the company’s antitrust compliance.

The verdict: there are still some loose ends.

Slow delivery of documentation for Microsoft (NASDAQ: MSFT) communications protocols lands near the top of the DoJ’s list of infractions. Also included, however, are changes Microsoft made in updated documentation that are not clearly identified, including removal of some protocols from the documents without notice or description.

The latter issue was one that the government’s technical committee (TC) has butted heads with Microsoft over earlier. That’s why their concern.

“Plaintiffs are concerned that the same problem has occurred again. In some cases there may be perfectly valid and sufficient reasons for removing certain protocol elements, but it is important for the stability of the documentation that the TC review the proposed deletions before they occur, as Microsoft and the TC previously agreed,” the DoJ’s statement to the judge said.

Microsoft and the government both said they are working to figure out how best to indicate changes in the documentation.

Then there’s the question of whether or not Microsoft has been dragging its feet in delivering information that competitors and other developers need in order to make their products interoperable with Microsoft’s – or whether it’s just slow.

As a matter of fact, slow delivery of protocol documentation has repeatedly dogged Microsoft ever since the federal court’s 2004 ruling against Microsoft. That tardiness was a major factor in Judge Colleen Kollar-Kotelly’s decision in January to extend the court-ordered oversight of the company for another two years.

“The Court’s decision in this matter is based upon the extreme and unforeseen delay in the availability of complete, accurate, and usable technical documentation relating to the Communications Protocols that Microsoft is required to make available to licensees under … the Final Judgments,” Judge Kollar-Kotelly said in an executive summary of her January decision.

That is the same major gripe that got Microsoft fined twice by the European Commission (EC) in its enforcement of European Union (EU) antitrust laws. That occurred most recently in February when the EC dinged the company for another $1.35 billion fine for slow delivery of workgroup protocol documentation – some of the same materials Microsoft is required to deliver in the U.S. case. Last month, Microsoft said it is appealing that fine.

Another complaint fielded by the DoJ in this week’s joint filing is that Microsoft unilaterally began providing documentation updates on a slower schedule than it had agreed to do. As of the first of the year, it switched from monthly to quarterly updates.

“The TC’s experience with this change has not been positive, as it creates a longer lag time between the identification of issues in the documentation and the publication of fixes to those issues. Licensees have expressed similar concerns … The TC therefore raised this issue with Microsoft in a recent meeting, and Microsoft agreed to increase the frequency of publishing updates to the documentation,” the DoJ’s statement to the judge said.

In response, in its section of the joint report, Microsoft’s attorneys pointed to the company’s initiative to publish thousands of pages of documentation, royalty-free or with minimal royalties, online. Begun in February, that initiative continues, Microsoft said.

It is also working to provide all of the documentation that has been demanded, including a set of overview documents that explain how everything works together.

“While Microsoft firmly believes that the current protocol documentation available to implementers enables interoperability with Windows and fully complies with the Final Judgments, in response to the Technical Committee’s request, Microsoft is undertaking a new effort to supplement the existing protocol documentation with additional ‘System’ documents,” Microsoft’s statement said.

Lawyers for Microsoft, the DoJ, and the states participating in the antitrust settlement, will meet on June 24 with Judge Kollar-Kotelly.

The extended oversight period in the U.S. settlement with Microsoft currently expires on November 12, 2009.

Microsoft officials had no official statement other than the contents of the report, a company spokesperson told in an e-mail.

Meanwhile, the government of China has launched its own probe of the software giant’s business behavior, according to published reports. The investigation centers on software that costs more in China than in the U.S., the reports said.

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