NY Urges Court to Read Microsoft Final Judgment Broadly
It’s been a busy week for NY’s antitrust lawyers. NY submitted a brief today in D.C. District Court, in which NY and other states argue for a broader reading of the section of the Microsoft 2002 Final Judgement that requires Microsoft to disclose communications protocols “used to interoperate, or communicate, natively (i.e., without the addition of software code to the client operating system) with a Microsoft server operating system product.”
The brief’s conclusion:
In its Tunney Act ruling, this Court wrote that, in the absence of the Final Judgment’s forward-looking provisions – § III.D (covering API disclosure) and § III.E – “it is quite possible that the core of the decree would prove prematurely obsolete.” United States v. Microsoft Corp., 231 F. Supp. 2d 144, 192 (D.D.C. 2002). This is the very risk now faced. To date, the software produced by § III.E licenses has largely been complementary to Windows, rather than the middleware-like products that § III.E was intended to encourage.
Microsoft’s protracted inability to provide complete and accurate TDs has deprived § III.E of a fair test to demonstrate what it can accomplish. Accordingly, the expected forward-looking impact envisioned for § III.E has not materialized. At the same time, the five-year clock for the remaining parts of § III has ticked away. To permit § III’s provisions protecting access to the desktop and the OEM distribution channel to lapse before MCPP licensees have had the opportunity to develop innovative products with the benefits of complete and accurate TD would be tantamount to rendering these parts of the Final Judgment “prematurely obsolete.”
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