The antitrust settlement between Microsoft and the US Department of Justice needs to be amended because it does not ensure competition between Microsoft and its rivals, the state of Massachusetts and an IT industry group argued.
Microsoft should have to release the code for its Internet Explorer browser and allow original equipment manufacturers (OEMs) to make any IE functions invisible to end users, argued Steven Kuney, lawyer for the state of Massachusetts.
Massachusetts is the remaining state appealing the Microsoft antitrust settlement, along with two industry groups - the Computer & Communications Industry Association (CCIA) and the Software & Information Industry Association (SIAA).
Robert Bork, lawyer for the CCIA, argued that a "special master" be appointed by the court to investigate any reports of violations of the antitrust settlement, approved by US District Court Judge Colleen Kollar-Kotelly in November 2002, but Microsoft and DoJ lawyers argued that the antitrust settlement was "clear and consistent".
The court system does not work fast enough to deal with potential violations of the settlement, therefore the need for a special master, Bork said. "We need a fast-acting remedy. This is a fast-moving area of technology," he added.
But judges questioned why courts were not adequate to resolve the issue and why a special master is needed when no evidence exists that Microsoft has violated the settlement.
Microsoft has fully acknowledged earlier court antitrust findings and is working to comply with those court orders, said Brad Smith, senior vice-president and general counsel for Microsoft.
"We took steps together with the government to rectify each and every one of those issues," Smith said.
Bork and Kuney argued the requirement for Microsoft to separate the IE code from the Windows operating system is not doing enough to encourage OEMs to replace IE with competing browsers.
Microsoft was not required to remove the IE code completely because it adds functionality to programs such as the Help program, but Kuney argued that Microsoft should have to remove IE identification from any functions that could pop up on users' screens.
"There's a difference between making use of some of the Internet Explorer and having the user seeing Internet Explorer pop up in its full glory on the screen," he added.
Without that kind of limit on IE, users will be confused about their browser choices, OEMs will have little incentive to install competing browsers and developers will have no incentive to write software that works with competing products, Kuney said.
Grant Gross writes for IDG News Service