Two groups representing consumers and software developers want to
intervene in the antitrust case against Microsoft in the hope of
toughening terms of the settlement approved by a federal judge in
November.
The Consumers for Computing Choice (CCC) and the Open Platform
Working Group filed a motion last to intervene in the case on the
grounds that the settlement would harm both consumers and software
developers.
The motion follows a similar move two weeks ago on the part of two
other groups, The Computer & Communications Industry
Association (CCIA) and the Software and Information Industry
Association (SIIA), and an appeal of the settlement by
Massachusetts and West Virginia.
The CCC and the Open Platform Working Group are seeking the right
to appeal the settlement under the Tunney Act, which stipulates
that before entering any final antitrust judgment, courts must
consider the competitive impact of the judgment, the effect on the
public generally and on individuals alleging specific injury from
the antitrust complaint.
James Turner, a consumer interest lawyer who heads the CCC, said
the settlement between Microsoft, the US Department of Justice
(DOJ) and nine states that sued the software maker injures both
software consumers and software developers by not going far enough
to open Microsoft product source code to outside developers and to
encourage innovation.
"Our basic argument is that we need to have interoperability for
the 70,000 applications that Microsoft has. People have to be able
to write programs to them," Turner said.
Nobody from the Open Platform Working Group could be reached for
comment.
Turner added that Microsoft's dominance of the computer software
industry is similar to the Bell system's dominance of the US
telecommunications industry in the 1980s, where innovation is
throttled by trying to control new technologies and use them to
maximise profits rather than opening those technologies to
unfettered development and competition.
The antitrust settlement, which was approved in November by US
District Court Judge Colleen Kollar-Kotelly, prohibits Microsoft
from retaliating against computer makers or independent software
makers that consider developing, distributing, promoting, using,
selling or licensing any software that competes with Microsoft
platform software or any product or service that distributes or
promotes any non-Microsoft middleware.
Microsoft's middleware products include Internet Explorer, Windows
Media Player and Windows Messenger, as well as Outlook Express and
its Java virtual machine.
Turner said middleware does not, in itself, address the overall
competitive problem posed by Microsoft's dominance of the software
industry.
"Microsoft has a toll bridge on the information superhighway and we
want it to be a public road," Turner said. "We're happy with
Microsoft putting vehicles on the road, but we're not happy when
they say that only their vehicles can pass on the toll road that
they own."
Turner claimed Judge Kollar-Kotelly latched on to the issue of
middleware while ignoring other ways Microsoft uses its operating
system monopoly to stifle development of software applications
using competing systems.
While the CCC acknowledged it did not have the same right to
intervene in the case as a Microsoft competitor, the group is
asking Judge Kollar-Kotelly to use her discretion and the guidance
of the Tunney Act to allow the CCC into the case to file an appeal.
If that failed, Turner said the CCC would turn to the US Court of
Appeals to consider the request to intervene.