West Virginia to Join Microsoft Appeal
The state of West Virginia said Monday that it would join Massachusetts in an appeal of a federal judge’s order imposing modest restrictions on the business conduct of Microsoft Corp.
As Massachusetts officials did last week, West Virginia Atty. Gen. Darrell McGraw Jr. said U.S. District Judge Colleen Kollar-Kotelly’s Nov. 1 order failed to force the software giant to disassemble the pieces of its Windows operating system.
“The court failed to impose sanctions that will remedy the unlawful commingling of computer software code that the federal court of appeals specifically agreed was an antitrust violation,” McGraw said. He said the state shouldn’t plead poverty “and allow an adjudicated lawbreaker to retain their ill-gotten gains.”
Seven other states and the District of Columbia have declined to appeal and said they will focus their efforts on the enforcement of Kollar-Kotelly’s decree. Under her ruling, Microsoft must disclose more about how Windows works with Web browsers, media players and other devices and refrain from retaliating against computer makers that install non-Microsoft programs.
Microsoft gave no indication of alarm. “We’re going to continue on and do what we do best,” spokesman Jim Desler said. “We will respond to anything we have to respond to.”
Legal experts and analysts said an uphill battle lies ahead for the two states. Originally 19 states filed suit alongside the federal government.
Kollar-Kotelly wrote more than 300 pages, exhaustively tying a proposed settlement by the Justice Department back to instructions from the appeals court, which had overturned an earlier order to break the company in two.
Kollar-Kotelly modified that settlement slightly, as Massachusetts, West Virginia and seven other states had asked. But she rejected those states’ requests for more sweeping remedies, including forcing Microsoft to release the code for Internet Explorer, to license a version of the Office productivity suite for other operating systems, and to sell a cheaper, bare-bones version of Windows without the Explorer browser and other additions.
Stephen Houck, who had been a leader of the states’ case before the settlement, said Massachusetts and West Virginia have a chance to convince the appeals court that some of its guidance wasn’t followed.
In its previous ruling, the appeals court found that Microsoft intertwined the browser and operating system to shore up its Windows monopoly from a threat by Netscape and the Java programming language.
Yet little in the lower court’s remedy order addressed that problem, and no code was ordered removed. Instead, the judge followed the Justice Department’s lead in settling for provisions such as one allowing computer makers to hide the desktop icons for Microsoft programs.
“Commingling is one of the most significant issues,” Houck said. “It’s something that the court of appeals spent a lot of time on and concluded was illegal.”
If the court agrees with the appealing states, it could order a modular Windows or open-source Internet Explorer or refer the case back to Kollar-Kotelly for more sanctions.
