The nine states continuing to press for a tougher remedy for Microsoft Corp. got a boost Tuesday, when the
federal judge overseeing the antitrust case indicated that she might be open to a broader remedy that takes into account newer
technologies that were not addressed in the first phase of the trial.
“I’ve decided I need more factual information, frankly,” U.S. District Judge Colleen Kollar-Kotelly said during the hearing,
according to media reports. Kollar-Kotelly explained that she needed to know more about technologies like handheld devices to
determine whether a remedy levied on the software titan should cover those technologies.
The judge’s move seems to soften a position she took on March 19, when she warned the states not to try to stretch their arguments
into a new liability case.
Kollar-Kotelly issued her warning after the testimony of Richard Green, vice president of Java Software for Sun Microsystems Inc.
. Green’s testimony concerned Microsoft’s decision not to include a version of Java in its new Windows XP
operating system — released months after the liability phase of the antitrust suit had concluded. Green argued that Microsoft’s
decision not to include Java in the operating system was an attempt to use its monopolistic power to sabotage Sun.
Microsoft attorney Steven Holley retorted that such testimony was an attempt to tack on new liability, and said the company would
seek to introduce new “pro-competitive” evidence if the states continued such an attempt.
At the time, Kollar-Kotelly seemed to agree with Holley.
“I think that some of the areas the plaintiffs [are] starting to go into, there is going to be a problem,” she said, according to
media reports. “You’re taking a very broad view of same or similar conduct.” She warned that if the states continued down that
path, “then we’re in a liability trial, not a remedy.”
However, since then the judge has allowed some evidence about more recent developments in the industry entered into the record.
Still, she said Tuesday that she has not yet determined how broad the remedy should be, and noted that she will continue to consider
Microsoft’s objections, including a motion to discard all evidence not related to the company’s monopoly in PC operating systems —
the original scope of the trial.
Microsoft has also asked Kollar-Kotelly to dismiss the states’ case outright, arguing that only the federal government has the right to seek nationwide penalties. Kollar-Kotelly has yet to rule on the motion, and on Monday she asked the federal government to submit its opinion — a move that could pit the U.S. Department of Justice against state governments, some of which have already been highly critical of the DOJ’s settlement with Microsoft.
“In light of Microsoft’s apparent concern for the authority of the United States … it seems most prudent to ask the United States to enlighten the court with its views on the issues,” Kollar-Kotelly wrote.
The DOJ has yet to comment, but 25 states (including states which signed the DOJ’s settlement), in addition to the nine who are continuing to press the case against Microsoft, have vociferously argued against the dismissal, citing the need to protect their authority over antitrust matters.
