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Don't broaden case into new trial, MS judge tells States

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Microsoft antitrust judge Colleen Kollar-Kottelly yesterday appeared to fire a shot across the bows of the unsettling States' case. She refused to accept testimony from former Netscape CEO Jim Barksdale, and also said she was inclined to agree with Microsoft's view that most of the testimony from Sun's Richard Green should be thrown out. She has yet to rule on this, but said she understood Microsoft's concerns, and that she felt some of the direct testimony "needs to be culled through a little more carefully."

She also warned that the broad approach being taken by the States would lead to a new trial, as opposed to a remedy.

Although The Register won't miss another pile of dull testimony from Barksdale, this could be bad news for the States and good news for Microsoft. One of Microsoft's arguments is that the States are massively broadening the scope of the case when it should now be focussing on specific and appropriate remedies for the violations Microsoft has been deemed guilty of. The States are indeed pitching very broad-ranging remedies that are intended to stop future repetition of violations in products that were not considered in the original trial, because in many cases they didn't yet exist.

They're also - as Microsoft has already pointed out - including products that did exist but weren't covered. One of their requirements for example is that the Microsoft Office monopoly be tackled via forced licensing of the product, but although Office was originally considered for inclusion in the case, they and the DoJ dropped it right back at the start.

Which party is right depends on your perspective. If Microsoft has its way then the issues will be slowly whittled down until the argument is over fairly narrow legal territory and past sins, and we get dangerously close to the MS-DoJ Revised Proposed Final Judgment. If the States have their way, on the other hand, then The Beast will be more effectively muzzled in the future, but it'll have much more to do with natural justice than the law. One really is inclined, much as one regrets it, to see some of Microsoft's point here, and to agree with the judge that the States' should try to narrow their case down to the legal and achievable.

That doesn't necessarily mean that current Microsoft products will be excluded from the case, but it probably does mean the States will have to present convincing arguments for why they're relevant. ®

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