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MS/DOJ: Antitrust action moves to Europe

Microsoft's apparent victory has not ended the company's antitrust problems, but has shifted the focus on pending cases in a US court and the European Commission.

Microsoft faces remedies potentially as severe as those rejected by US district court judge Colleen Kollar-Kotelly. Although either side in that case could appeal her decision, so far neither has done so.

Although Kollar-Kotelly did not force Microsoft to distribute Sun Microsystems' Java Virtual Machine (JVM) with the Windows operating system - a remedy sought by the nine non-settling states and the District of Columbia - Sun has filed a preliminary injunction in its private antitrust case requiring Microsoft to distribute its JVM.

In Brussels, the European Commission in 2000 charged Microsoft with abusing its position in operating systems to dominate server markets, and the commission may impose remedies affecting the software giant's bundling practices as well as force more disclosure of interfaces. A decision is expected next month.

Microsoft officials are hoping that Kollar-Kotelly's decision will help the software giant in its other cases. With regard to the European Commission case, "we feel it serves as a good reference point", said company spokesman Jim Desler.

Sun and AOL Time Warner, which owns Netscape Communications, the company that triggered the federal antitrust case, are among the companies that have filed private antitrust cases against Microsoft seeking billions of dollars in damages as well as other remedies rejected by Kollar-Kotelly. Those remedies, for example, include the unbundling of the Internet Explorer Web browser from the operating system.

Although Kollar-Kotelly's decision could steer judges away from severe sanctions in the other cases, it could also have the opposite effect, said Mark Ostrau, who heads the antitrust practice at Fenwick & West. It gives Sun and AOL "that additional implied argument that if we don't get a remedy, there is no remedy".

Trials in the Baltimore cases are many months away. But Motz this week agreed to allow plaintiffs to use some of the findings in the US case for their private lawsuits. It means Sun, AOL and others will not be starting from scratch.

The issue is not final, and Microsoft will argue that many trial court findings should be ignored by the court because of the partial reversal made by the US Court of Appeals.

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