Google to Judge: It’s Not Enough

Just when Microsoft’s legal eagles figured they’d gotten that whole nasty Vista versus Google desktop search episode behind it, the search vendor went around the U.S. Department of Justice (DoJ) and requested to file a brief with the oversight judge, insisting that the software behemoth hasn’t gone far enough.

Google’s attorneys Monday have requested to file a so-called amicus curiae, or “friend of the court” brief with Judge Colleen Kollar-Kotelly, the federal court judge appointed to oversee the terms of Microsoft’s 2002 antitrust settlement with the DoJ, 17 states and the District of Columbia.

Among other things, Google  is asking the judge to extend her oversight specifically of “middleware” – which includes Web browsers as well as search tools – to make certain that Microsoft  completely follows through on promises it made in a six-month status report filed with the court last week. The portion of the consent decree that deals with such middleware expires in mid-November 2007, although the judge has the power to extend that date.

In last week’s filing, Microsoft spelled out specific steps the Redmond company agreed to make in Vista in order to accommodate third-party search tools such as Google Desktop Search. Google had begun complaining to anyone who would listen last year that Microsoft had “hard-wired” Vista to exclude the use of its desktop search tools.

Microsoft promised it will take four specific actions to remedy Google’s complaints. First, it will make it simple for users to select whichever desktop search engine they want to use, just as is currently possible for browsers and media players in Vista. Second, it will enable the chosen desktop search tool to be launched “whenever Windows launches a new top-level window to provide search results.”

Third, the company will add links on the Start Menu and on Windows Explorer windows to the user’s chosen desktop search tool. Fourth, it will provide desktop search competitors with technical information needed to optimize the performance of their products running on Vista. The delivery vehicle for the changes will be Vista Service Pack 1, which the report said will be out by year’s end.

However, Microsoft has only promised to have a beta test version of the service pack out by the end of the year. Additionally, there are a couple of things that Microsoft has not agreed to do.

For one, it will not turn off its own search program – dubbed “Instant Search” – or its indexing engine, which Google insists slows the performance of its own indexing engine.

For another, “when the user enters a query [in explorer windows], Vista will continue to display the search results using the internal Vista desktop search functionality,” the six-month status report states. “Microsoft has agreed, however, to add a link that, if clicked, will launch the default desktop search program and display search results from that program,” the report continues.

In a press release last week that accompanied the report, the DoJ sided with Microsoft, saying that the changes that the company has promised “will resolve any issues the complaint may raise under the final judgments [the antitrust settlement].”

However, that doesn’t go far enough for Google.

“The remedies won by the Department of Justice and state attorneys general from Microsoft are a positive step, but consumers will likely need further measures to ensure meaningful choice,” David Drummond, Google senior vice president and chief legal officer, said in a statement e-mailed to “Ultimately, these issues raise the need for continued judicial oversight of Microsoft’s practices, to ensure that consumers’ interests are best served,” his statement continued.

Google argues that Microsoft’s proposed remedies are vague and not definitive.

Additionally, in their court brief, Google’s attorneys raise the specter that, once oversight of middleware has lapsed, Microsoft might pull shenanigans such as removing menus so that it will not have to display alternate search engine links.

“Although the status report does not mention the fact that one of the menu entries in the Vista Start menu and in various ‘right-click’ menus is the word ‘Search,’ Google understands that Microsoft may intend to remove these menu entries from Vista and deprive users of these access points altogether rather than provide the user choice,” Google’s brief states.

Microsoft, in turn, questioned Google’s standing with the court, pointing out that Google is not a party to the consent decree, as are the DoJ, the states and the District of Columbia.

“Microsoft went the extra mile to resolve these issues in a spirit of compromise. The government has clearly stated that it is satisfied with the changes we’re making. Google has provided no new information that should suggest otherwise in their filing,” Microsoft spokesperson Jack Evans said in a statement e-mailed to

The DoJ and Microsoft are scheduled to meet with the judge for a regularly-scheduled quarterly status meeting to discuss the matter on Tuesday.

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