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DoJ abandons MS split, but wants court to check WinXP etc

How good have you been since the trial, Bill?

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The US Department of Justice won't be asking for Microsoft's break-up any more, nor will it be coming back for another go at the tying of IE to Windows, which was one of the matters sent back to the district court by the appeals court for further consideration. The DoJ will however be pressing for "prompt, effective and certain" relief over the large pile of sins Microsoft was deemed guilty of, and it also wants to lob "developments in the industry since the trial concluded" into the equation.

So the apparent escape from break-up (the judge of course could still have different ideas) has several nasty edges to it from Microsoft's point of view. In a statement today the DoJ makes it clear that it's abandoning break-up and the tying issues in the interest of speed. It could also have said that break-up would have been messy, unworkable and difficult to get through the courts. And it could have said that, given the difficulties involved in putting Humpty Netscape back together again, there's really not a lot of mileage in IE tying these days.

It didn't, naturally. The DoJ is largely going for the quicker, easier and probably more effective shot. The appeals court spiked Judge Jackson's remedies and bounced a couple of his conclusions, but in large part agreed with him that Microsoft was seriously guilty of a multitude of antitrust offences and sundry monopolisations. If Microsoft cannot get this overturned, and the DoJ doesn't give it the opportunity to delay by pursuing the harder and more complicated matters, then conduct remedies could be imposed relatively quickly.

The DoJ itself says it is seeking "an order that is modeled after the interim conduct-related provisions of the Final Judgment previously ordered in the case." Aside from wanting a period of "expedited discovery" to cover what Microsoft's been up to since the trial (including, of course, WinXP), the DoJ wants the court to evaluate "whether additional conduct-related provisions are necessary, especially in the absence of a break-up." This might be upping the ante, it might be a negotiating ploy with the possibility of an agreed settlement in mind, or it might be a bit of both. ®

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