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Judge rejects Google's Microsoft anti-trust plea

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Analysis Google has failed in its attempts to ride the coat tails of Microsoft's landmark antitrust settlement, leaving the search giant one possible course of action: initiate its own costly and drawn-out antitrust case.

The judge who arbitrated Microsoft's 2002 settlement between the Department of Justice (DoJ) and prosecuting states has today rebuffed Google's plea to extend the length of that settlement to officially monitor Microsoft's promise last week that it would open Windows Vista to third-parties' desktop search.

In an Amicus Brief (PDF) filed with Judge Coleen Kollar-Kotelly, the internet's favorite search engine claimed Microsoft had made an unspecified desktop search commitment and could not be trusted to deliver.

"Given Microsoft's history of aggressively minimizing the impact of court-ordered relief, it is appropriate for the Court to use its authority to extend the Final Judgment so that it can verify Microsoft's compliance with the commitments it has made to resolve this important issue," Google wrote.

Microsoft promised to update Windows Vista so OEMs and users can set their own default search with the operating system's first service pack, due by the end of 2007. The consent decree of Microsoft's antitrust settlement expires on November 12.

Judge Kollar-Kotelly was unlikely to accept Google's plea, as that would have meant accepting modification of the scope of the agreement and retrospectively adding Google to the list of original prosecutors. In pressing its case, Google has crowbared "search" into the original, legally defined concept of "middleware" that was painfully hammered out during the case.

To change that would have been a precedent-setting action by a judge who was brought in to cauterise the long, painful and politically inconvenient case.

"The plaintiffs, as far as I'm concerned, stand in the shoes of the consumer," Kollar-Kotelly said Tuesday. "Google is not a party in this case."

Rather than intervene and mandate action as Google wanted, Kollar-Kotelly is leaving it to the original antitrust plaintiffs to continue to police Microsoft’s regulatory compliance through the six-monthly reporting mechanism established under the 2002 settlement.

Google need only have looked to Microsoft's own experiences in bucking the system to have seen its efforts would have washed out. In attempting to go for an early closure, Microsoft tried to circumvent the appeals stage after trial judge Thomas Penfield Jackson ordered Microsoft be broken up by going directly to the US Supreme Court. That Court kicked the decision back down the line.

In keeping with the rules of this legal game, Google must now decide to undertake its own legal action against Microsoft. To do that, though, it'll need two things: first, to amass and present to the DoJ evidence it believes proves Microsoft is excluding search rivals from the desktop to the detriment of innovation and consumers. For that, it'll need to wait at least until SP 1 ships.

Next, Google will need allies: the history of antitrust actions and investigations of Microsoft is of Silicon Valley vendors joining up to lobby US and European politicians and of appearing before political assemblies before official regulators act.

Unfortunately for Google, it will probably be acting alone. Sun Microsystems and Novell, two prime movers in earlier cases, have long-since settled personal grievances and have agreements to co-operate with Microsoft. And, Google's domination of internet search and aspirations over the enterprise and collaboration software also mean any alliance of smaller internet and desktop search suppliers will likely mostly advantage Google rather than its partners - further taking the shine off of getting on side with Google.

Google's one hope: desktop PC manufacturers. Google has no software agenda with these companies, who feel less constrained by their relationship with Microsoft than they did in the late 1990s. Furthermore, OEMs could be looking for ways to differentiate their machines in an increasingly commoditized market where the promise of Windows Vista alone has not lived up to wild sales promises.

If, or when, Google achieves all that, it'll need the DoJ to act. Given the current Bush administration's reluctance to prosecute businesses, that'll leave Google hanging on a change of government after January 2009. Otherwise, Google has one final option: prosecuting a private case, as Sun did over Java. Over to you Google.®

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