Antitrust enforcers might have trouble keeping Microsoft Corp from integrating new features into Windows XP when the next version of its operating system goes on sale Oct 25, antitrust experts say.
Windows XP is likely to be the next battleground now that a US appeals court has ordered a new hearing on remedies to be imposed on the software giant for illegally defending its Windows monopoly. Microsoft said Wednesday it will free computer-makers to remove links to its Internet Explorer Web browser. The company didn't let them remove other software integrated into XP.
State antitrust enforcers have voiced concern that Microsoft is trying to expand its operating-system monopoly to services on the World Wide Web, by adding to XP its programs to play digital music, make Internet phone calls and send instant messages. The enforcers suggested they might seek to alter Windows XP during the new hearings on remedies.
To persuade a judge to bar Microsoft from integrating new features into XP, the government must show that such a move ``somehow reinforces the dominance of the operating system,'' said Andrew Gavil, an antitrust expert at Howard University.
Microsoft likely will argue the new features are not related to preserving its Windows monopoly and are simply a response to consumer demand for a better product, experts said. Wednesday, Microsoft spokesman Jim Cullinan said the appeals court ruling applied only to browsing technology in Windows, not other software features.
That argument "reflects, predictably, a very narrow reading of what the court required," Gavil said. "They're trying to read the court's opinion in as narrow of terms as possible and respond to it in as narrow of terms as possible." Antitrust enforcers have said they will seek a remedy to prevent Microsoft from repeating illegal conduct, not just to stop practices that triggered the lawsuit.
Iowa Attorney General Tom Miller termed Microsoft's latest move insignificant because "they have gotten the prize; they have gotten the benefit from their conduct." There are many examples where "a company will have done something illegally and achieve an objective, like winning the browser war, and agree not to do it again in the future," he added.
The task is to craft a remedy that will prevent Microsoft from perpetuating its control of the market for personal computer operating systems, experts said. "The remedy is forward-looking; it is supposed to solve the problem" of a market dominated by a monopolist, said Herbert Hovenkamp, an antitrust expert at the University of Iowa law school.
New Mexico's attorney general, Patricia Madrid, said she would leave remedies to others, announcing the state had withdrawn from the case in return for a payment by Microsoft of the state's attorney fees and costs.
The appeals court gave antitrust enforcers ammunition, experts say, by upholding the trial judge's finding that Microsoft violated antitrust law by "co-mingling" the Internet Explorer code with Windows.
"Microsoft is on thin ice if it is going to intermingle code in a way that makes it impossible to extract these third-party applications" from Windows, Hovenkamp said.
Microsoft is "still analyzing what the code co-mingling component of the ruling means," Cullinan said. He argued that "nothing in the Court of Appeals decision addressed other technologies in Windows."
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